Do-It-Yourself Online Will Programs: Penny Wise and Pound Foolish

August is “Make-a-Will Month” and we couldn’t be happier for the community to be talking about the importance of having a Will! Unfortunately, many people are turning to “Do-It-Yourself” (DIY) Will drafting programs on the internet, advertised as quick and inexpensive. Be careful; you get what you pay for!

Let’s look at whether DIY Will drafting programs can be relied upon to create a legally valid and enforceable Last Will and Testament that accomplishes your estate planning goals. Can DIY Wills be trusted? Are there any risks of preparing a Will yourself instead of retaining an estate planning or elder law attorney to prepare one for you?

In order to be legally valid, a Will must be executed in accordance with strict rules and formalities. For example, in New York, a Will must be executed in compliance with the Estates, Powers & Trusts Law which requires that the Will is in writing and is signed by the Testator in the presence of two attesting witnesses who must both attest the Testator’s signature and, at the request of the Testator, sign their names and affix their residence addresses at the end of the Will within 30 days. There are also several ceremonial requirements, such as the requirement that the Testator “declare” to each of the attesting witnesses that the document is in fact his or her Last Will and Testament. While a DIY Will program could generate a simple written document, there would be no guarantee that it is properly executed in accordance with state law. Moreover, in many states, including New York, there is a presumption of validity when an attorney supervises the execution of a Will, making it much more challenging for individuals to contest its validity in court. Not so, of course, with a DIY Will from an online program.

Further, an online Will service cannot provide you with the guidance and knowledge of an experienced elder law and estate planning attorney. Everyone’s estate plan is unique—and there are many important factors to consider that a DIY program will inevitably fail to address. For example, perhaps you want to leave something for your spouse or beneficiary who is disabled or receiving government benefits such as Medicaid or SSI; a simple outright bequest would jeopardize their benefits or their inheritance. Similarly, there are drafting strategies that can be utilized for beneficiaries with prospective creditor or marital problems to preserve their inheritance. When treating heirs unequally or disinheriting a child, there are additional provisions and safeguards that must be included in the Will to prevent a Will contest proceeding in Probate Court. Asset protection planning is always part of the estate planning/Will drafting conversation, including whether assets should be protected in a trust so that assets are not needlessly spent down on the cost of long-term care (the average cost of one year in a nursing home is over $250,000). All of these factors, just to name a few, will not be addressed or taken into consideration by a simple online Will drafting program, potentially costing an individual or family hundreds of thousands of dollars.

Finally, an online Will can be a devastating and costly mistake for individuals who need estate tax planning. As an initial matter, a DIY Will program will not even be able to tell you whether you have potential estate tax exposure in the first place, much less which estate planning trusts and techniques are available to reduce estate taxes. Determining estate tax liability requires careful analysis of an individual’s assets, how they are titled, their cost basis, factor in lifetime gifts, and applicable state and federal estate and gift tax laws. An online Will program cannot perform this analysis nor is it capable of structuring your Will to effectively reduce, if not eliminate, estate tax exposure. Considering state and federal estate taxes can amount to close to a 50% tax rate, this is clearly penny-wise and pound-foolish.

A Do-It-Yourself Will is simply not a substitute for the wisdom and guidance of an experienced elder law and estate planning attorney like the knowledgeable attorneys at Cona Elder Law.

Speak with the experienced and compassionate trust and estate attorneys at Cona Elder Law to be sure you get the best legal advice tailored to your needs. Contact us at 631.390.5000 or elder@conalaw.com.