By Lorie Burch, Owner & Founding Attorney of Burch Law
So many people are under the false assumption that drafting a Will through an online form or Will kit is “better than nothing.” I disagree. An online Will is actually WORSE than nothing!
You’ve been there. You and your spouse are frantically rushing around trying to get ready for a big trip that you’re finally getting without the kids and then it dawns on you: “What if something happens to BOTH of us?” Cue the internet and searching for a form to download. You quickly answer the questions, print it off, sign it, maybe even get it notarized and think “Well, we KNOW we should see a lawyer about this, but at least this is ‘better than nothing.’” This is one of the biggest misperceptions I hear.
There’s no “close” in Wills & Probate. If a Will isn’t signed with the legal requirements, then it is NOT valid and cannot be used in any way to show your intent! Many times these forms are not even signed correctly. Texas has specific requirements for how a Will is to be signed, witnessed, and notarized. I had a case awhile back where a single man with two adult children decided to use a website to draft his Will. “All” he had was a house, a bank account, and a car. Simple, right? Why go to a lawyer for advice and guidance! When do you find out a Will wasn’t signed properly? Usually when it’s too late…as in this case. When his daughter came to me after he died, I immediately noticed that he signed on one date; the first witnessed signed on a different date; and the second witnessed signed on yet another date. I looked at the daughter and said, “Your dad and both witnesses signed on three different dates.” And she said, “Yes, is that a problem?” Knowing that she is grieving, I gently told her that, unfortunately, the Will isn’t valid as the witnesses not only have to witness her dad’s signature, but also each other’s. Looking slightly defeated, she asked, “Well, can we at least show the court his intent to try and make this easier?” I had to tell her “no.” There is no “close” in Wills and probate. So what did we have to do? File a determination of heirship where the court has to appoint an attorney ad litem to research the heirs and present the findings to the court and then get her brother to agree that she can serve as the executor/administrator of the estate. If you think that sounds quick and inexpensive, you’re wrong. This extra time and expense could have been avoided by seeing an attorney. Why didn’t he go to an attorney in the first place? To save money. And in the end, not only did it cost WAY more money, but caused extra time and grief for his family.
A Will is not enough. Just having a Will is often not all that is needed when it comes to your estate and family planning. (see our other blog “Why a Will is not Enough” https://burch-law.com/why-a-will-is-not-enough/) Many do not realize that much of their money and assets will not even be controlled by their Will. When you designate a beneficiary on assets such as life insurance, retirement accounts, annuities; those designations will override whatever you stated in your Will.
For parents of young children, you do NOT want to name minor children as a beneficiary on these assets even if you have a Will that creates a trust for them. Rather, you want to direct your beneficiary to your Will with the trust (or a living trust). Who is going to guide you with this if all you did was an online form? If you leave your young child named as beneficiaries on your life insurance or retirement then that money can get stuck in the court and then given to the child at age 18 rather than going through the Will that has a trust and trustees established for your child. But you don’t know that or have any help unless you consult a qualified attorney.
Overall, DIY legal planning is a huge mistake even when you perceive your circumstances to be “simple.” There is simply too much at stake and there is no substitute for sound legal counsel to guide you through these decisions, ensure your wishes will be upheld and that your documents are enforceable. No, an online Will is not “better than nothing”…it is worse than nothing, because it gives you a false sense of security when, in fact, you may still be left with nothing.