November 3rd, 2021

The Downside of a DIY Will

As the DIY quote goes “why buy it for $7 when you can make it yourself with $92 worth of supplies”.  In recent years, especially during the COVID-19 pandemic, there has been a large rise of do-it-yourself (“DIY”) projects. From baking and home improvement to tax preparation and estate planning, there is a YouTube video or other internet resource for every project imaginable. LegalZoom, RocketLawyer, and Nolo are some of the online legal services providers that have emerged from the “DIY” era and heavily advertise their ability to assist individuals in the drafting of their own legal documents.

It is important to note that some of these online service providers often provide basic or standard forms that might not meet state-specific requirements of proper execution of a Will. Further, such providers are prohibited from issuing legal advice and some have faced lawsuits for the unauthorized practice of law in several states. As such, a Testator risks choosing incorrect forms or provisions without the legal advice of an attorney who has assessed the nature and size of their Estate.

State Specific Execution Requirements

While many states have similar rules governing the execution of Wills, they are nevertheless state-specific. For instance in Pennsylvania, every Will shall be in writing and shall be signed by the Testator at the end thereof, subject to certain exceptions. 20 Pa.C.S.A. § 2502. A Testator who is unable to sign his name but rather makes a mark as his signature or directs someone else to sign his name must do so before two witnesses who subscribed their names to the Will in the Testator’s presence. Id. at §2502(2), (3). A form Will that has not been witnessed may open the possibility for a contest, wherein, the validity of the Testator’s signature may be questioned. Alternatively, a Will that is duly witnessed and executed in the presence of and under the supervision of an attorney, with a self-proving affidavit, saves unnecessary delays in the probate of a Will as it will be presumed valid.

Following the formal execution ceremony under an attorney’s supervision further protects the Testator’s Will from being invalidated on the grounds of incapacity. Testamentary capacity, or the mental capacity required to draft a Will, is required by all states for the valid execution of a Will. By retaining an attorney who concentrates their practice in the area of Wills and Estates, the Testator’s capacity will be further vetted by a practitioner who will be documenting the Testator’s ability to identify their assets and lineal descendants.

Use of Incorrect Language

            Even the most simple of estate plans, if incorrectly drafted through the use of “precatory” language, i.e. phrases such as “I wish” or “I would like”, will fail to properly dispose of your assets. As advised by the American Bar Association and held by courts nationwide, “A proper Will must clearly state the testamentary intent to dispose of assets.  The language used must be dispositive in nature (a letter of instruction or words stating a person’s general preferences will not suffice).  Those who draft their own Wills run the risk of using words, terms or descriptions that could fail to make effective dispositions”.  American Bar Association, Do It Yourself Estate Planning, November 2021 

            When the terms in a Will are deemed ambiguous, a Court may admit evidence to determine the decedent’s intent with regard to the dispositions in their Will. Upon the hearing of testimony and examining the evidence, a court or jury may reach a conclusion as to the decedent’s intent that is contrary to their actual goals and intentions.

Tax Planning Considerations

            In addition to the above considerations with regard to valid Will drafting and execution, it is important to consider the state and federal tax consequences of any gifts or bequests made in a Will. An estate planning attorney can advise a Testator with regard to current estate tax laws, as well as assist in the drafting of a plan that may help mitigate any estate tax that a Testator’s estate may be subject to.

            Further, certain states, Pennsylvania included, impose their own inheritance tax on the net value of a decedent’s estate. Without a properly drafted provision in their Will that dictates how such taxes should be apportioned amongst the heirs, a Testator may have unintended and disparate tax consequences suffered by the loved ones inheriting their assets.

Conclusion

            In order to ensure that your wishes are accurately and efficiently carried out upon your death, it is crucial that the drafting of your estate planning documents be undertaken by a licensed attorney who practices in the area of Estate Planning and Administration. Purchasing DIY forms that may fail to include the proper provisions or do not comply with state execution requirements, may result in costly Will contests amongst your loved ones, or a disposition of assets contrary to what you intend.


Kathy Bacenet serves on the firm’s Estates team, helping individuals and business owners navigate simple and complex estate planning and administration matters.