By Ronald A. Fatoullah, and Stacey Meshnick
Nowadays, do-it-yourself (“DIY”) projects abound. However, writing one’s own Last Will and Testament (a “Will”) should definitely not be on one’s to-do list. Individuals often think that a Will is a simple, basic document, but this is typically not the case. A DIY Will can lead to complications and issues that may result in added costs and aggravation in the long run. More importantly, such a Will can result in one’s wishes not being carried out.
A DIY Will is a mistake for three reasons. First, when an individual writes his/her own Will, he/she does not get to review, understand and plan with an attorney regarding all the legal, financial and tax issues that may arise. Secondly, in addition to substantive errors, an individual who creates his/her own Will is exposed to potential defects in the actual execution process. Third, there is a rebuttable presumption that all requirements are met if a Will is signed under the supervision of an attorney.
A Will is one of the most important documents an individual will execute. The drafting and execution of a Will is only part of the process. Meeting with an experienced attorney to discuss one’s donative intent as well as the repercussions of certain decisions is a critical component. Often an individual focuses solely on the Will, neglecting to look at the big picture to reveal potential legal issues relating to his/her estate. And, individuals may think that a Will alone might be the best planning document for themselves, when a Living Trust and a Will would be more appropriate.
Some of the important items that should be reviewed with an attorney are as follows:
- Is the Will going to be used to govern the distribution of the individual’s assets? Assets of a decedent are distributed according to how the assets were legally held. If an asset has a joint owner or a beneficiary designation, this overrides any provision in a Will. Many individuals are not aware of this and are oftentimes surprised that their Wills do not always control the final distribution of their assets. Therefore, it is important for an individual to review a list of all his/her assets in order to make sure that those assets that are jointly held or have beneficiary designations comport with the wishes expressed in the Will.
- Unknown Heirs – The Surrogate’s Court requires that an individual’s heirs be notified of the Will being submitted to the court in order to give the heirs the opportunity to object to the Will. Therefore, if one’s heirs are unknown or are persons with whom the decedent did not have contact, the executor may need to spend a great deal of time and money to locate those heirs. In these cases, other estate planning techniques, such as Living Trusts, are usually a better option than a Will, and would alleviate the need of going through Surrogate’s Court. This would remove the cumbersome requirement of locating unknown heirs.
- Estate Tax Issues – For those with potential estate tax issues, it is important to implement a plan to minimize federal and state estate taxes which will likely not be achieved with a DIY Will.
- Beneficiaries with Special Needs – For those individuals with children or other intended beneficiaries who may have a disability, it is important to review how a gift will ultimately affect the beneficiary, and to create a method of distribution to avoid unintended consequences. For example, the share of a disabled beneficiary may be transferred to a supplemental or special needs trust contained in the Will so as not to affect the disabled beneficiary’s continuing eligibility for government benefits.
- Spendthrift Beneficiaries – For those beneficiaries that are likely to squander an inheritance, an attorney can incorporate a so-called ‘spendthrift trust’ into the Will.
- Once an individual has reviewed and addressed all of the potential legal issues surrounding his/her estate, an experienced elder law attorney is the best person to draft the Will. The attorney is familiar with the necessary components of a Will and the necessary terminology. For example, DIY Wills often neglect to for provide a “residuary clause” or a catch-all clause to give instructions regarding the distribution of any other assets which may not have been specifically provided for.
The ceremonial execution of a Will is also critical. A Will must be duly executed according to statutory requirements in order for it to be valid. Accordingly, attorneys follow specific procedures when a Will is executed. The law provides for a rebuttable presumption that all requirements are met if a Will is signed under the supervision of an attorney. This is extremely important. Furthermore, aside from ensuring that the Will is executed per statutory requirements, an attorney is also responsible for confirming that the person signing his/her will has “testamentary capacity,” or is of sound mind and memory, and is not unduly influenced or under any duress or coercion. An attorney must assess these potential issues to ensure that the Will can withstand a challenge based on undue influence, lack of testamentary capacity, duress or coercion.
There are numerous reasons why it is not prudent for an individual to draft his/her own documents. The attorneys in the Elder Law Practice Group at Meltzer, Lippe, Goldstein & Breitstone, LLP can help you prepare a Last Will and Testament and Living Trust that avoids the potential problems that a DIY Will can create.
Ronald Fatoullah, Esq. Chairs the firm’s Elder Law Practice Group and is a Partner of the firm’s Trusts & Estates Practice Group. Stacey Meshnick, Esq. is a member of the firm’s Trusts & Estates and Elder Law Practice Group.
This blog posting is for informational and educational purposes only. It is general in nature and not person or circumstance specific. This blog posting is not intended, nor should it be construed as rendering independent investment, legal or tax advice. It may but does not necessarily constitute attorney advertising.