My husband and I were riding along in the car the other day, discussing wills. (I honestly don’t know why we were discussing wills. Estate planning is not a common topic of conversation in my household, as Jeff – like most normal people, but unlike me – thinks it’s a pretty boring subject).
When I told Jeff the average price of a simple will, his reaction reminded me that many do not recognize the true value of an estate plan. It is easy to see why a do-it-yourself approach, or perhaps a legal zoom kit, might be tempting. Unfortunately, these devices are often ineffective and can lead to costly litigation.
Here are some common problems with DIY wills:
1. They are often executed improperly. In Georgia, a valid will requires that the Testator/Testatrix (maker of the will) sign before two witnesses who also sign. Among other things, a separate notarized affidavit is also required to avoid having to track down and serve the two witnesses with probate paperwork when the Testator dies. I’ve seen costly and emotionally damaging litigation arise when the Testator’s intent was clear, but the proper formalities were not completed.
2. Legal terminology is of utmost importance. Estate planning attorneys use some strange language in their documents. This terminology has a well-defined meaning in the law, but is not commonly understood by lay-people. On the other hand, common language devices are often open to several interpretations and can be difficult to interpret at the Testator’s death. Simply put, an estate planner should know which words to use.
3. They may not waive the requirement to file inventories and returns. In Georgia, unless the Testator has waived this duty, an Executor must file an initial inventory as well as annual returns, both of which require court approval. This is a hassle and most clients choose to do away with this requirement in their wills. However, such a waiver may not be included in a will purchased online, and is highly unlikely to appear in a self-drafted will.
4. Missing out on a comprehensive estate planning review. An estate planning attorney will counsel clients on financial powers of attorney, advance directives for health care, titling of assets, pros and cons of using a living trust, beneficiary designations, and planning for retirement accounts, among other issues. These are all very important to the estate planning process.
5. Things are not always as simple as you think. A client’s wishes might be simple, but the legal parameters involved in implementing the plan can become quite complicated. Examples include planning for minor children, retirement funds, or unexpected tax issues. An experienced estate planner can identify these problems and help clients develop effective legal strategies.
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Elder Law Update 