Wills 101

Legally you do not need a lawyer to write a will. However, we suggest that you do not write your own Will. If you do, at least have an attorney review it.

 Even though there are a lot of self-help books and good software programs available, a technical slip-up could make your Will useless. A lot of time and money could be spent determining if a document is a valid Will, and, if so, what it means.  If cash is a problem, there are lawyers who will write a Will for low cost or for free.

That said, here are some situations where the risk of writing your own Will is lower:

• Your estate is small and simple. For example, your only assets of value are $5,000 in your savings account which is in your name, and a few older items (perhaps antiques). You expect to leave everything to your spouse, who will also be the administrator of your estate.
• You do not have a living spouse. You want to leave everything to your children equally, and your estate is well below the exemption for federal estate tax purposes.  
• You have no assets which are subject to probate, or the amount is minimal. Probate assets are assets that pass through a Will. Assets which are not subject to probate include those which are owned in a joint tenancy with a right of survivorship, life insurance proceeds, or assets that pass to someone else due to other operation of the law, such as by a beneficiary designation. To learn more, see Will Substitutes.

Even if your situation is in fact "simple," be cautious. You will not be here to fix mistakes or explain anything that is not clear. Check your state's requirements and follow them precisely.  It is definitely better to err on the side of safety. For example:

• When two witnesses are required, use three.  
• When identifying your beneficiaries, be precise by adding to their names their relationship to you (e.g. my wife, Carol Brown or my niece, Kathy Woodside rather than just naming the people) and a current address which should be stated as “currently residing at.…” 
• List alternates in the event a person named in the will predeceases you, or the entity to which you leave an asset goes out of business.
• If you need to research your state’s law, check Cornell's law library at: http://library.lawschool.cornell.edu/.  In addition, most law libraries in county courthouses are open to the public. Librarians in law libraries are generally helpful to non-lawyers who wish to learn how to do their own legal research. Ask them how you can locate the state’s statutes concerning wills.

It is advisable to consult an attorney rather than writing your own will if you:

• Want to disinherit a spouse or children.
• Have infirm or incompetent heirs.
• Own a small business.
• Want to leave a gift that is conditional on some event.
• Have mutual wills with your spouse but want to change your dispositions or assets in a trust.
• Anticipate a challenge to your will (especially if it could be argued that you are not of sound mind or are under undue influence).
• Have complex ownership or business arrangements.
• Own real estate in more than one jurisdiction.
• Have minor children.
• You or your spouse is not a citizen of the U.S.
• Have piece of real property located in another state.
• There is any complication at all in either your assets or how or to whom you want your assets distributed.

Popular will making programs

• Quicken Willmaker
• Legacy Writer
• Legal Zoom
• Rocket Lawyer

The reasons to involve an attorney include the following:

• If you write the document incorrectly, or it is not executed as required by the law of the state in which you reside, you won't be able to correct mistakes since the mistake won't come to light until it's too late. The entire document may be declared to be invalid so that you will die without a will. That means your assets will pass under the state laws of intestacy which are cookie cutter laws that are not likely to pass your assets the way you would have. In addition, the person who adminsters your estate will be appointed by the court. That person may just as well be a friend of the court's as a relative or friend of yours. The person will be paid for his or her services from your assets.
• Will writing programs do not help make sure that all your assets are properly coordinated. 
• You may skip areas or misinterpret instructions since you are not familiar with the law or what is normally in a will.
• A professional's advice can save money if your estate will be subject to estate taxes. Even if there is no federal tax, state and local taxes can be substantial.
• A lawyer:
  • Can help you think through your wishes and how to best accomplish them. 
  • Make sure that the formalities required by your state to make a document into a valid Will are followed. For instance, as a general matter, one witness is not enough. Not can a beneficiary be a witness.
  • Help make your Will challenge proof. In some states, a Will is presumed to be valid if the execution is supervised by an attorney. Even if it is not presumed to be valid, it is more likely that the appropriate procedure will be followed when executing the will under a lawyer's supervision. (For more about making a will challenge proof, click here.)

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