There are a host of developments that can cause property to be distributed in ways other than that which had been intended when the will was written and signed. Many of them are changes in family situation such as births, deaths, divorces, adoptions, marriages, etc. Those changes also don’t necessarily need to directly involve the individual making the will either. Changes in the family situations of those to whom property was originally to be distributed also can have far-reaching, and often times negative effects on a hastily written estate plan.
Aside from changes in family situation, there are numerous other changes which can result in a distribution other than that intended by the individual writing the will. These take the form of actions taken by heirs and beneficiaries, death of beneficiaries, and changes in the nature of property given in the will.
While do-it-yourself wills can be enticing due to their low cost, they are low cost for a reason. Fact of the matter is that they are not tailored to individual life situations. Websites like Legalzoom are not law firms.
They are not legally permitted to review your answers for legal sufficiency, draw legal conclusions, provide legal advice or apply the law to the facts of your particular situation.
And that’s important.
Many are duped into a false sense of security by taking the half hour to prepare one of those DIY wills; however, the vast majority does not consider important “what-ifs” that may happen in their life down the road, and through no fault of their own, they don’t understand the legal principles that apply to those future events or the consequences they may have in light of what has been written (or not written) in their wills. It’s also only human to be afflicted with the “it won’t happen to me” syndrome due to the infrequency with which some events occur. Involving a lawyer in the process provides vision and understanding so that a will can be made as “farsighted” as possible no matter what life events subsequently unfold.
“Well, that’s great and all,” you say. So what exactly could happen that may lead to unintended and possibly negative results? Here are a few examples:
Lapsed bequests and devises. Naturally, when writing a will and making gifts to various people you assume that they will be alive when the time comes to distribute those gifts. But, that may not always be the case. It’s important to consider this possibility and provide accordingly in the will. A knowledgeable lawyer can explain to you what would happen if specific individuals are not living at the time of your death. Typically, any gift to a deceased individual will lapse unless the Anti-lapse Statute directs that it should go to another. Using a DIY will does not consider every possibility in this regard due to each person’s unique life situation.
The possibility that a gift may lapse also raises another point. Wills should be reviewed and updated frequently to ensure that they continually reflect the wishes of the drafter. You only get one shot at writing a DIY will; but a lawyer can work with you through the years to continually tweak the document to ensure it always reflects your wishes.
Void bequests and devises. Void bequests and devises result when a beneficiary is not in existence when the will is executed or where the gift is illegal. Many people, when drafting their wills, are often confronted with a confusing situation, for example, when there is a long list of people whom they want to benefit or in what proportion each person should benefit. All too often, when the will is finally signed, individuals who were to receive gifts have passed away. Those gifts don’t simply lapse. They are void from their inception. Instead of sitting down with an experienced attorney that can help them work through those issues, such people continually put off executing a new will leading to unintended consequences.
Renunciation. Every married person should execute his or her will with the understanding that the spouse can renounce it, which can either increase or decrease the share of the survivor. That may or may not be compatible with the wishes of the individual drafting the will. A will may be renounced by a spouse for a number of reasons such as decreasing federal estate tax or reducing the size of the taxable estate of the surviving spouse. By working with an estate planning attorney, it’s possible to give due consideration to factors that may lead to a renunciation decision and avoid the need for renouncing the will.
Disclaimers. A disclaimer is a useful mechanism by which a beneficiary may adjust the amount he or she will receive under a will after the writer of the will has died. Of course, there are limits to this that arte beyond the scope of this post, but the idea is that an individual who does not want or need the entire gift which was left to them has a means of refusing the gift. Disclaimers are particularly beneficial in estates where passing gifts to future generations can produce tax savings for the entire family. Unlike a DIY will, an attorney-drafted will can address appropriate limits which should be placed on the use of disclaimers that are appropriate for an individual’s unique life circumstances.
Ademption. A will is only useful when it gives away gifts that actually exist to people that actually exist at the time of the drafter’s death. In some cases though, plans are defeated when something that a person has been given under a will is not there when the time comes for it to be distributed and as a result, the person doesn’t receive it. This is known as ademption, and it occurs unless a will foresees possible situations where it may arise and makes contingency plans. A DIY may miss a number of these contingencies. Should another gift be used? Should the individual receive cash instead? What if there isn’t enough to account for everyone who was to receive a specific gift? An estate planning attorney is able to ensure that these issues are all addressed and can work with the drafter to modify the will as time passes, new property is acquired and older property is disposed of.
Elections. It’s important to realize that even though all beneficiaries may survive the will drafter, depending on who they are, they may have a right under the law to make certain elections even though a will may give them something different. To the extent possible, a will must be drafted so that, even though elections are exercised, the drafter’s wishes will not be defeated any more than necessary. DIY wills are limited in their ability to address these situations while an estate planning attorney can account for a number of possible future scenarios and plan contingencies accordingly.
Abatement. Abatement is the way that an estate which ends up being less than the drafter initially anticipated ends up being distributed. For various reasons, such as lifetime adversities, excessive bequests for the size of the estate, depreciation of certain assets or the necessity of paying tax liabilities, it may be necessary to distribute assets in a way that may vary from what the drafter intended. This means that, no matter how remote a potential event seems it’s important to consider what effect it may have. A DIY will is limited in the possibilities it contemplates and the possibility that the drafter’s wishes may not be carried out increased with its use. An experienced estate planning attorney is much better suited to talk through those issues with you as you draft a will that reflects your wishes no matter what life throws your way.
Will contests. There are few things that can be more damaging to a well thought out estate plan than a successful will contest. In the event a disgruntled heir or relative challenges the validity of a will and succeeds in having a court declare it invalid, there are few options that a DIY will drafter’s heirs have. The estate may end up being distributed through intestate succession- that is, the process set out by statute for who should receive a deceased individual’s property and in what amounts. By working with an estate planning attorney to draft a will, an individual can gain a number of protections. First, the attorney is going to ensure that the document is properly executed according to what is required under the law. An improperly executed will is the most common reason will contests succeed. Second, the attorney is going to work with the drafter as time goes by to continually update the will to reflect life’s changes. If a will contest succeeds in this case, for example by an individual successfully challenging the will’s validity because the drafter was too old or senile to know what they were doing when they made it, there is going to be an older will to fall back on.
I’ll repeat what I said at the beginning: Websites that permit you to create DIY wills are not law firms. They are not legally permitted to review your answers for legal sufficiency, draw legal conclusions, provide legal advice or apply the law to the facts of your particular situation. While the price may be enticing, often times these documents cause more problems than they solve. The topics above are just a few of the possible downfalls that may arise.
If you’re serious about wanting to plan for the unexpected and protect your loved ones, then it’s worth your time and money to work with an attorney.
Michael F. Brennan is an attorney at the Virtual Attorney™ a virtual law office helping clients in Illinois, Wisconsin, and Minnesota with estate planning. He can be reached at firstname.lastname@example.org with questions or comments, or check out his website at www.thevirtualattorney.com.
The information contained herein is intended for informational purposes only and is not legal advice, nor is it intended to create an attorney-client relationship. For specific legal advice regarding a specific legal issue please contact me or another attorney for assistance.
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