James R. Balmforth: Do You Need A Lawyer To Draw Up A Will?

A will is a legal document that directs who will receive your property when you die. The legal requirements are pretty simple. In order for your will to be valid, you must know what property you have and what it means to leave it to someone, then sign the document and have it witnessed according to the laws of your state. Some states allow you to make a handwritten will, called a “holographic” will. This will does not need to be witnessed, but it is much more likely to be challenged after you die. Many services have popped up that offer do-it-yourself will software or documents. These might work fine if you have little or no property, small savings or investments, and a traditional family tree, but the rest of the population should not use these programs. When it tested three leading online legal document preparation services, Consumer Reports concluded that none of the will-writing products was likely to entirely meet a person’s needs unless those needs are extremely simple. And likely you’ll need a lawyer to definitively determine whether or not your needs are indeed simple. Not hiring a lawyer can lead to problems that drag out your estate administration and cost money and create headaches for your heirs.

If you’ve decided to make a will, but you’re not sure how to go about creating it, you can either hire a lawyer to help you, or you can do it yourself. Both situations have distinct advantages; however, the right option for you depends on your specific circumstances.

Advantages of Writing Your Own Will

The primary benefit of drafting a will yourself is cost. Lawyers generally charge between a few hundred to several thousand dollars to draft a will. However, the price of do-it-yourself online will programs ranges from $20 to $200 or more, while writing the entire will yourself costs you nothing. If your assets and bequests are simple and straightforward, and you are careful to comply with state law, writing a will without a lawyer should generally not pose a problem.

Advantages of Hiring a Lawyer

Having a lawyer draft your will can buy you peace of mind. A lawyer can ensure that the will complies with state law, provides the best tax advantages for your estate and heirs, and accounts for particulars in your specific circumstances. In short, you may feel more assured that the document will stand up in court even if contested, and that your wishes will be carried out as desired.

Considerations

If you chose to write a will without a lawyer, be sure to carefully research applicable state laws, particularly with respect to spousal inheritance laws, the signing of the will and any requirements relating to witness. In addition, write your wishes as clearly as possible because ambiguity in a will can render it invalid. If you use an online program to draft your will, read all instructions carefully and follow them to the letter. Some programs offer to have a lawyer review your documents for extra cost, an option that may give you additional peace of mind while saving you money.

When to Hire a Lawyer

In some circumstances, hiring a lawyer to draft your will is the least risky option. You should probably hire a lawyer if you have assets in multiple countries or states, have minor children, have been remarried, are in a same-sex relationship, own a small business, possess assets over $2 million or believe your will might be contested. A lawyer may also be a good idea if you do not understand the online forms or believe that the forms do not meet your particular needs.

Things You Should Know Before You Make Your Own Will

About two-thirds of Americans don’t have a written will, according to a 2015 survey by Lawyer. For most people, it’s something they put off or haven’t gotten around to yet. Age, unsurprisingly, is also a factor. The 2015 survey found only 30% of Americans aged 45-54 had a will, while 46% of those aged 55 to 64 had one. That makes sense if you consider that assets tend to increase as you age. If you have neither children nor any assets to speak of, and you’re comfortable having your closest blood relative, a parent or sibling receive your property outright, then you can probably get away without having a will. So if you’ve got plans for any of your assets, it can be worth the time and effort to develop some sort of plan, and get it all in writing even if you don’t hire a lawyer. “I’d rather have a DIY will because at least gives the beneficiary named a fighting chance.

• Understand Your State Rules: If you are going the DIY route, you’ll need to research your state’s laws. The rules can be quirky: Handwritten wills may not require any witnesses, for instance, but only half of states accept these wills as binding. A newly drafted, typed will now requires two witnesses’ signatures to be valid, wherever you are, but an older typed will that was executed, which used to require three witnesses, will be subject to the old requirements unless it is updated. You may also want to know if your state has an estate or inheritance tax and how to plan for it. About six states impose an inheritance tax; to be paid by any heirs who live in those states, while a dozen states impose an estate tax, which gets paid on your overall assets. (That’s on top of the federal estate tax, which affects only the wealthiest estates.) For instance, if you are dividing assets evenly between heirs, and one lives in a state with an inheritance tax, you’ll need to decide whether to set aside additional assets to cover the tax hit.

• Designate Beneficiaries: A will won’t cover all of your assets. A lot of people make up a will thinking it disposes of the whole estate. But it doesn’t. Anything that’s in joint name or payable to a named beneficiary, such as life insurance policies or 401(k) balances is outside the scope of a will. Before you even start a will, you should assign beneficiaries for as many accounts as possible. You can also create transfer-on-death or payable-on-death designations for checking, savings, and money market accounts, as well as certificates of deposit and U.S. bonds. Almost all states also allow you to name someone that will inherit any stocks, bonds or brokerage balances upon your death. And over a dozen states allow you to set up transfer-on-death stipulations for vehicles and real estate.

• Spell Things Out: Once you’ve taken care of beneficiary forms and checked out your state law, write out your intentions. A few guidelines:

I. Use the right language: You need to spell out who you are and the purpose of the document. Statements like “I declare that this is my last will and testament” and “I declare that I am of legal age to make this will, and that I am sound of mind” are not just for the movies. They’re critical to ensuring your will is taken seriously by your heirs and the courts, according to Utah law.

II. Be specific: If you are using a will to pass on your house, for instance, include the full address when identifying the property. For personal items, include a complete description. And use the full names of beneficiaries, rather than just referring to them as “my wife” or “my child.”

III. Name an executor you trust and tell them where to find your will: This is the person who will be wrapping up your affairs after your death and eventually distributing your assets. The American Bar Association recommends naming a secondary executor or a co-executor, in case your first choice is unable to carry out the task or predeceases you.

IV. Appoint a guardian for minor children: For each child, you should name one person as a guardian and another as an alternate. It’s perfectly legal (but not necessary) to pick different guardians for each child.

V. Spell out contingencies: Perhaps the most difficult aspect of a DIY will is thinking through all the contingencies. Say you’re leaving everything to your sister. But what if your sister predeceases you: Do you want the property to pass to her children? Or do you want to go to your other siblings? Describe the contingencies for each portion of your will.

• Consider an Upgrade: While a DIY will is better than nothing, lawyers argue that a professionally drafted document can do far more to protect your heirs, particularly if the beneficiaries you’d choose aren’t those provided by your state’s intestacy law. It might even cost less than you’d imagine. While a handwritten will won’t cost you a penny, in most states, a fill-in-the-blank formatted will, downloaded from a site will set you back about $100 while a will drafted by an attorney can cost, on average, only about $375. (For a larger, more complex estate, with federal estate tax considerations and specific trusts or entities such as family limited partnerships, the price tag will be $1,000 or more but complex estates should not be relying on DIY wills in the first place.) And at many firms, a will is billed as a flat fee, rather than an hourly rate. So if cost is a concern, you can call ahead to ask what the fees are.

What makes a will legal?

Any adult of sound mind is entitled to make a will. Beyond that, there are just a few technical requirements a will must fulfill:

• The will must be signed by at least two witnesses. The witnesses must watch you sign the will, though they don’t need to read it. Your witnesses, in most states, must be people who won’t inherit anything under the will. (If your state allows “holographic” wills, you don’t need witnesses.)

• You must date and sign the will. You don’t have to have your will notarized. In many states, though, if you and your witnesses sign an affidavit (sworn statement) before a notary public, you can help simplify the court procedures required to prove the validity of the will after you die. You do not have to record or file your will with any government agency, although it can be recorded or filed in a few states. Just keep your will in a safe, accessible place and be sure the person in charge of winding up your affairs (your executor) knows where it is. A lawyer does not have to write a will, and most people do not need a lawyer’s help to make a basic will -one that leaves a home, investments, and personal items to your loved ones, and, if you have young children, that names a guardian to take care of them. Creating a basic will rarely involve complicated legal rules, and most people can create their own will with the aid of a good software program or book.

How to Make a Will Without a Lawyer

A lawyer is helpful in the will creation process because you can be confident that your will has been drafted according to your state’s laws. An attorney’s help is not essential, however. If you feel confident that you can navigate your state’s laws and express your wishes on paper in a clear and unambiguous way, you can make your own will. Each state has different formal requirements, but you may opt to comply with the laws of every state to help ensure that your will is valid.

• Start a new word processing document or begin writing in ink on a blank sheet of paper. No state is particularly picky about the precise form your will takes, but most require it to be printed in ink.

• Specify that the document you are creating is your will. Title the document “Last Will and Testament” and identify yourself on the first line by stating your name, city and state of residence, birth date, and your intent to create a final will.

• Identify your spouse or most recent ex-spouse by name if applicable. Also supply the date and location of the marriage or divorce.

• State the number of children you have who are currently living and supply their names. If any of your children are minors who will need care in the event of your death, state that you select a specific individual to act as your children’s guardian. Appoint one or two additional individuals who may act as alternate guardians.

• Appoint an individual to act as your estate’s personal representative. This individual will handle the legal processes involving your will and oversee the disposition of your assets to your beneficiaries. Appoint one or two additional individuals who may act as alternate personal representatives.

• Identify clearly any property you are giving away and the person whom you would like to receive the property. Be as descriptive as you can, stating the beneficiary’s full name and relationship to you. When describing property, do so in a way that will be unambiguous. For instance, provide the exact address of a house rather than just saying “my home.”

• Print your name, your current city and state of residence, and the date at the bottom of your document. Include a line for your signature. Below this line, create three additional areas for the names, addresses and signatures of your witnesses.

• Sign your will in front of three disinterested witnesses. A disinterested witness is someone who is not a named beneficiary in your will. After you have signed, have the witnesses provide their information and signatures on the appropriate lines.

Wills Attorney Free Consultation

When you need estate planning help with wills, trusts, powers of attorney, health care directives, probate, estate administration, and more, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.