The Substantial Risk of Writing a Will Without a Lawyer

What is the risk of writing a will without a lawyer? Each state has strict laws that govern the probate of estates—whether with or without a will.

Unfortunately, this means that if a will is challenged as invalid and thrown out, the testator will no longer have control over what happens to their estate. Trying to write your own will in compliance with your state’s laws can be more challenging than you may expect.

Below, we’ll discuss a few of the key reasons it’s important to use a lawyer to write your last will and testament.

An Attorney is Familiar with Your State’s Laws

Each state’s probate laws are different. Some states require wills to be witnessed by at least two non-relatives, while in others, an attorney’s signature is all that’s needed. Some states won’t allow you to exclude a spouse from inheriting and others require an explanation if you’re disinheriting an adult child. The rules surrounding who can be an executor and how the executor is paid can also be complex. If your will doesn’t adhere to these laws, it may not be valid.

There is a risk to writing a will without a lawyer. It takes years of training and experience to write an impenetrable will. The odds that a layperson can create a similarly solid will from an online do-it-yourself site are low. Saving a few bucks up front by going the cheap route can cost you significantly more later.

If your will is thrown out as invalid, your assets will be distributed according to your state’s intestate distribution laws. This generally means distributing them to your children, grandchildren, parents, siblings, or other surviving relatives. But even if you’re happy with how your assets will be divided under the intestate distribution laws, there are other factors at play. For example, if your children are still minors, any inheritance will need to be held in trust until they’ve reached legal age.

This process can also become more complex when you have assets that pass outside of probate. These non-probate assets can include 401(k)s, individual retirement accounts (IRAs), and life insurance policies that are paid out directly to the beneficiary or beneficiaries instead of added to your estate. Assets that pass outside of probate can’t be used to pay off the estate’s debts, and, in the case of life insurance proceeds, generally aren’t taxable.

The potential for complicating factors is just one of several reasons it’s important to find an experienced attorney to help draft your will.

Any Legal Challenge to Your Will Can Cost Money and Time

The last thing anyone wants after their death is for their loved ones to fight over the remaining assets and possessions. Unfortunately, a poorly drafted will (or one that doesn’t comply with your state’s laws) can leave plenty of questions unanswered, and the potential for strife is high. This can be compounded if the terms of the will are ambiguous or subject to more than one interpretation. Something as simple as an accidentally omitted or repeated word may lead to litigation or change the way your assets are distributed.

If one or more of the people who stand to inherit from your will lodge a legal challenge in probate court, your assets could be tied up indefinitely. Depending on the outcome of the mediation, the legal fees for such a battle may be paid directly from your estate, leaving less for your heirs once the probate battle is finally settled. Estate battles can take years; depending on the age and health of your heirs, some may pass away before probate is finalized, complicating matters further. By having your will drafted and executed by an attorney, your estate will be far more insulated against any potential challenges to the distribution of assets.

An Attorney Can Help Avoid Allegations of Undue Influence

One way an otherwise valid will may be discarded is if the probate judge determines the testator lacked the mental capacity to execute the will or was subject to undue influence in its execution. Though probate laws can vary from state to state, all states require a testator to be of sound mind when he or she executes a will. This means knowing and being able to clearly express your wishes without being threatened, bribed, or coerced by anyone else.

Someone who wants to show that their loved one was the victim of undue influence when they executed their will may get medical records, witness statements, and other evidence reflecting the testator’s mental state and cognition when they drafted and signed their will. If, for example, medical records indicate that the testator began suffering from dementia five years before their most recent will was executed, this may create a rebuttable presumption that the testator was incapacitated when they executed the newer will.

An estate planning attorney can head off any allegations of undue influence at the pass. They should discuss your wishes with you to get a gauge of your commitment to the disposition of your assets. If you’re still waffling or unsure about the distribution of your estate, your attorney may advise you to take a few days and think it over so that you can come to a decision before writing a will. And no matter who may accompany you to your attorney’s office, a good attorney will discuss your estate planning with you alone, ensuring that you’re not being pressured by the person with whom you rode to the office.

Relationships Change, and Your Will May Need to as Well

Contingency planning is important. Even if your will is set in stone and you’re unlikely to change your distribution, it’s important to have a Plan B and perhaps even a Plan C and Plan D to ensure that everything will go off without a hitch. This can mean naming a backup or alternate executor, alternate trustee, and alternate beneficiaries (if, for example, you outlive your children or spouse) when writing a will.

You may even want to name a charity or cause that’s close to your heart as an alternate beneficiary in the unlikely event that you’re preceded in death by all your close relatives. Otherwise, your hard-earned assets may wind up with a far-flung relative instead of someone you were close to.

While reviewing your beneficiaries and creating a contingency plan, it’s also important to discuss with your attorney who might not be a good choice to name as an executor or trustee. You’ll likely be able to draft your will to exclude these individuals, which can provide some peace of mind. Be sure to discuss your decision to name someone as an executor or trustee with this person before naming them; this can avoid the awkward situation that arises when the person you’ve named is unable or unwilling to serve.

Do it Right the First Time, You May Not Get a Second Chance

Above we’ve discussed just a few of the many reasons it’s important to hire an attorney when writing a will. Though facing your own mortality and making decisions on how you’d like your assets to be distributed after your death can be a sobering experience, having expert help throughout the process can ensure your will complies with all applicable laws and can be probated without any unforeseen complications. By using an attorney to draft a solid, challenge-proof will, you’ll leave your loved ones with a valued legacy no matter how big or small your estate may be.

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