Beware of the Do-It-Yourself Will

It happens several times each year, a client walks into my office with a document entitled “Last Will and Testament” and asks me to review it. The document is always a will that the client attempted to draft on his or her own. In some cases they used a form book from the library, in other cases they used an online service or a software program which they purchased. In a few instances, they will attempt to copy another will, either their own prior will or someone else’s. In almost every instance, the document does not meet the requirements for a will in the State of New Jersey, putting them in a position where they either have no will at all or which requires a court to interpret the document for them, which could cost their estate a lot of money.

I believe that drafting your own will is like trying to remove your own gall bladder. There is a small chance that you may do it right, but there is a far greater chance that you won’t. In over 100 do-it-yourself wills that I have reviewed, not one was a valid will that would have been probated with the Surrogate’s office.

When I ask the client why they attempted to draft their own will, the most common answer I receive is that they wanted to save money. Other times they will tell me that they wrote the will themselves because an attorney refused to prepare the will they way they wanted it. In one instance a client told me he drafted his own will because he did not understand the “legalese” he saw in wills and he wanted a will that he and his family could understand.

Looking at the various reasons why people draft their own wills, I find that most of them are not valid. As noted, the most common reason people try to make their own wills is to save money. This is most often an illusion. In Ocean County the average cost of preparing a will varies from $100 to $200. The cost of having to go to court if the will is not drafted property can be as high as $2,500 to $3,000. In a worst case scenario, the court may rule that there is no will at all, thus subjecting the estate to go through administration, where the cost of posting a surety bond could easily exceed $1,000.00 each year in an average estate. Clearly, any savings of trying to write your own will could be wiped out by the potential costs if the will is not drafted properly.

Some people will try to draft wills themselves because they want to put in certain wording. In some cases the wording that they are trying to put in their wills is either illegal, impractical or impossible to carry out. For example, one client wanted to leave all the assets to the executor named in the will and let the executor determine how the assets should be divided. In other words, the executor would be making the very decisions that the maker of the will should have made.

Finally, wills are drafted by attorneys using terms and concepts that date back to medieval England. Those terms and concepts have a specific meaning in the law. Often those terms are not readily understood by the non-lawyer. By attempting to draft a will using common English, in many cases a person will create an ambiguity that can only be resolved by a court at great expense to the person’s estate. In one case, when faced with two conflicting clauses concerning the payment of death taxes and not understanding either clause, the client put both clauses into the will and said let the executor decide which clause should apply. One can only imagine what the Internal Revenue Service would have done with that logic.

Your will is the most important document you will ever sign. It only makes sense to have it prepared by an attorney, knowledgeable in estate law, rather than try to do it yourself. The modest cost of having an attorney prepare the will is offset by the potential costs if the will is not drafted properly.

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