I’d like to talk a little bit about do-it-yourself wills., but not necessarily in the way that you might think.
One thing that estate planning attorneys –especially those who blog and tweet– like to rail about are online and store bought do-it-yourself wills. LegalZoom is the enemy, and the lesser-known companies are even worse. I know that I too have in the strongest possible terms castigated do it yourself solutions.
Well, I’m here to tell you that in certain circumstances, and for certain people they may be okay.
But, what are those limited circumstances?
Let’s say you are 22 years old, unmarried, childless, and have minimal assets. You don’t own a home, you have maybe a few thousand dollars in checking and savings, or even the beginnings of a retirement account. There are certain lawyers who will tell you, that not only do you need a professionally prepared a last will and testament, but that you also need a revocable living trust.
For me, estate planning is helping my clients provide for and protect themselves in the event of incapacity, and to provide for and protect their families in the event of their death. Also, it is about helping my clients plan for and minimize taxes. This involves preparing trusts that protect the decedent’s assets for their children upon their death, bypass trusts for spouses to minimize taxes, life insurance trusts, charitable remainder trusts, and other tax minimization strategies like Grantor Retained Annuity Trusts (GRATS).
But there are some people, like the 22-year-old above, who really only need a will to “say where their stuff goes.” They don’t need a trust for children, because they don’t have any children. They don’t need a revocable living trust, because they can use a pay on death designation on their bank accounts. As far as their personal property goes — let’s be honest. No one is going to really care about their broken down Ikea table.
For them, an online or store bought Will, along with durable power of attorney and health care surrogate is probably ok. I’m actually more concerned about the health care surrogate and durable power of attorney, as there is certain language that is required to be in there, and I don’t know if the DIY companies include it.
My other real concern regards the execution of the documents. The problem often is that these do-it-yourself wills are not properly executed. In Florida, in order for Will to be valid, it has to be executed in the presence of two witnesses who are also in the presence of each other. Then, in order for it to be self proved, the testator and the witnesses need to sign again in the presence of a notary public. The problem with these do-it-yourself wills is that the companies either do not provide proper instructions to their “clients” about how to execute the documents, or, the clients completely ignore them and do not follow the instructions. This can be a problem.
But other than that, for certain people, a LegalZoom will is probably fine.
Now, if you have children, or more significant assets, or real estate, then I do not recommend a do-it-yourself estate planning solution. But, if you are single, childless and broke, you don’t need me, and you certainly don’t need a revocable living trust, and anyone who tells you otherwise is just trying to sell you something.