Legal and Financial Risks of a Do It Yourself Will

Assuming you meet the technical requirements of a valid will and are of sound mind, it is possible to have a "do it yourself" will. It is important to understand the practical, legal and financial risks of taking that approach.

Practical Risks of a DIY Will

​Even if you create a valid will with witness signatures, it will not be a "self-proving will." This means that your family will have to "prove" your will in the Probate Court in order for the assets to distribute. One of your witnesses will have to go to the probate court to attest to the validity of the will, or all heirs will have to assent to the probate of the will. 

This can create a significant hurdle for your loved ones, especially if the will is presented to court many years after you signed it. They may also have to spend thousands of dollars in court costs and fees to get through the required proceedings.
In addition, there are things you can do in a properly drafted will that streamline the process for your family. Some examples of the practical problems your family members will face if your will is not done properly:

  • Without specific language granting authority to your personal representative and waiving the bond requirement, administrating your estate may be too burdensome for the person you identified.
  • If your will leaves assets to minor children and you have not also created a trust to hold and manage those assets, your family will have to get court approval to set up either a trust or a conservator for your children's assets.
  • If something happens to both you and your spouse, your family will have to petition the court for guardianship of your minor children. This can result in conflicts and disputes, and will prolong the time until your children are settled in their new home.

Legal Risks of a DIY Will

There are many things you can miss in a will that is not drafted by an attorney. Here are some examples:

  • You may have made a mistake that invalidates the entire will. By the time the will is presented to probate court, you are no longer around to correct any mistakes, so it is important to get it right the first time.
  • A will that does not provide a certain percentage of your estate to your spouse, or that omits any of your children, requires specific language to be valid.  Without this language, the court may not enforce your wishes.
  • If the will is declared invalid, the probate court will have to revert to the default distributions under Massachusetts law, which may not be what you wanted and could cause conflict and division in your family.
  • Failure to plan for disability. A comprehensive estate plan includes a health care proxy and durable power of attorney. These documents allow you to identify the person you trust to make financial and medical decisions for you if you are unable to do so.

Financial Risks of a DIY Will

In addition to the legal risks of drafting your own will, there are some significant potential financial consequences if you create estate planning documents without help from an expert in this area. These include:

  • Missing the opportunity to minimize or avoid Massachusetts estate tax. If your assets are worth more than the state exemption, your tax liability starts at approximately $36,000.Increasing the expense to your family of finalizing the distribution of your estate (the estimated costs without proper planning is 3% to 8% of the value of your estate).
  • Missing the opportunity to protect some or all of your assets from the costs of long term care through an asset protection trust.
  • Ultimately having your heirs pay a probate lawyer more than you would have spent having a proper estate plan drafted in the first place.

Why There is No Reason to Do It Yourself

​Getting a lawyer to review and prepare your estate planning documents is not as hard as you might think. The cost of preparing your estate plan may not be something you had in your budget. At the same time, you should consider the potential for tax exposure of over $36,000 without proper planning for state or federal estate tax. You should also remember that the cost of the probate process without a plan can eat up 3-6% of your total estate.

In comparison, what you will need to spend for an estate plan is minor, and invaluable in terms of your own peace of mind.

Some Things You Can Do Yourself

There are things you can do without the help of a lawyer than can ensure certain assets pass to the people you love. If you have life insurance or retirement accounts, those will go to whoever you identify in the beneficiary designations. Joint bank accounts will pass to the joint account holder. Many banks and financial institutions also allow you to fill out a "payable on death" form to identify who gets control of the account upon your passing.

Ideally these are steps you take in conjunction with legal advice, a comprehensive estate plan, and legal documents prepared by an estate planning attorney. But these are steps you can take on your own to address at least some of your assets.

A Note About Online Wills and Online Forms

The internet has many online wills and online forms available for you to use in your estate planning. There is also legal software where you can plug in your information and it spits out wills and trusts.

These documents may or may not have been prepared by attorneys, and may or may not have been customized to reflect your state's laws. Even with the best of them, they are no replacement for a full analysis of your financial and family situation and your goals to come up with a plan that can meet those goals.

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About slnlaw

We are a Massachusetts law firm focused on business law, employment law, and estate planning. Our team includes attorneys with large law firm experience, public service experience, experience working with small businesses on a wide variety of matters, an attorney with an advanced degree (LLM), and a former clerk to the Massachusetts Supreme Judicial Court.  Attorney and founder Emily Smith-Lee has been named to the Massachusetts Super Lawyers list every year since 2013, and was recently named a 2018 Lawyer of the Year by Massachusetts Lawyers Weekly.  Our lead estate planning attorney Jenna Ordway has been recognized as a top estate planning attorney, and has published a book about estate planning in Massachusetts.
 
What We Do

Employment Law: We advise both businesses and individuals about Massachusetts and federal employment laws, and represent them as needed in litigation if a lawsuit cannot be avoided. 

Business Law: In addition to providing advice on employment matters and defense of employee lawsuits, we can help you set up your new business, review your agreements with vendors and customers, resolve or litigate business disputes, and much more. 

​Estate Planning: We provide customized plans for individuals and families to help minimize your estate tax liability, protect and preserve your assets, and ensure that the people in your life are taken care of the way that you want.  We can help you with wills and trusts, planning for a child with special needs, planning for the cost of long term care, and more.

We also have an extensive network of other professionals, some lawyers in other practice areas and others who are non-lawyer professionals who offer services that our clients frequently need.  If the problem you need solved is not one that we handle, we are happy to provide a referral to someone we know you can trust.