Should You Write Your Own Will?
Can You Write Your Own Will?
Writing your own last will and testament might seem like a good idea and not much of a challenge. You're just saying where you want your property to go when you die.
But that's only one important thing your will should address. If you have minor children, they can't own property. You'll have to appoint someone to take care of their inheritances for them, not to mention naming someone to care for them when you can no longer do so.
The laws governing how to make a valid will can vary from state to state. This—and any number of special circumstances—can make writing your own will a real challenge, even with the help of computer software and online programs.
Estate Planning Isn't One Size Fits All
Will forms generated by estate-planning computer software are typically designed to cover only the most basic needs. These forms are often kept as simple as possible to comply with the laws of all 50 states and the District of Columbia, although you can find some that are state-specific.
Your loved ones could be left scrambling after your death, trying to deal with state-related issues the software didn't address. And just as everyone's fingerprints are different, so are everyone's estate planning needs.
The bottom line: A generic last will and testament probably won't do you or your loved ones much good.
It's All in the Words
Using the correct legal language in your will is important because so much rides on getting it right.
For example, the court will appoint a guardian or guardians for your children if you don't accurately express your wishes for who you want to raise them when you're gone. Naming a guardian might have been your foremost reason for wanting to write a will in the first place.
And you can create chaos if you're not knowledgeable about what assets require probate and which don't. Assets with named beneficiaries or rights of survivorship don't pass through the probate process, so they should not be included in your will. You could end up throwing a monkey wrench into your probate proceedings if you try to include them and them to someone in your will who doesn't also happen to be the named beneficiary to receive the asset.
Another wrinkle is that your will might not be accepted as authentic or valid if you don't include certain required legal terms and phrases.
What About Taxes?
Most estates aren't subject to an estate tax at the federal level, but some states have their own estate and inheritance taxes that are much different from federal provisions.
Your will is an integral part of an estate plan—plan being the operative word. You'll want to prepare for the eventuality if you think your estate might be liable for estate or inheritance taxes down the road. You can take steps now to mitigate the sting of those taxes or even eliminate them entirely...but you have to know what those steps are and how to best use them.
If you're not an attorney, you might want to at least consult with someone who is.
Books, Software, and Online Programs Carry Disclaimers
Pretty much every book or software program about estate planning comes with some sort of disclaimer, such as, "The information contained in this book/program is not legal advice and is not a substitute for legal advice. For legal advice, consult with an attorney."
So, there you have it. Even books and programs about estate planning recommend that you seek the expertise of an experienced estate planning attorney. You might want to have a professional review your finished product for accuracy and validity, even if you do decide to write your will yourself.
So Many Laws
State laws are all over the place when it comes to probate, estate taxes, gift taxes, and inheritance taxes—not to mention the required legal formalities necessary to write and sign a valid will. All these state-specific laws can affect an estate plan, including the definition of descendants, anti-lapse statutes, community property, homestead rights, common law marriages, putative spouses, and disinherited spouses.
Generic software generally cannot cover all these state law issues. Laws are always changing, being added, or being repealed even when software offers state-specific programs.
Buyer Beware—You Get What You Pay For
Would you perform your own surgery or repair your own car? Doing things yourself can save time and money in the short term, but the long-term result might be costly indeed.
Estate planning can require seeing around corners. What if the individual to whom you leave the bulk of your estate predeceases you? Your property could pass to the family spendthrift instead if you don't include contingencies for this type of thing in your will.
The same goes if you don't plan for those potential estate taxes and your estate does indeed end up owing money. It will come out of your bequests to beneficiaries.
A Final Warning
Don't forget about real estate you might own outside your home state—chances are that the laws there are different from the laws where you live.