Many times a $99 Will costs a lot more than 9,900 pennies. Going through an online service to create your Last Will and Testament may save time and money up front, but the cost can later be devastating to the family. And often irreversible.
It is pretty well established that 75% of the people in the U.S. have no written estate plan whatsoever. While it may seem like online Will services are helping get part of the 75% to do something they wouldn’t otherwise do, my experience as an attorney has shown that about 75% of the estate problems that end up in court are there because someone tried to do it themselves.
Getting the language wrong
While the online services are probably asking the right questions, it is not necessarily easy for the client to give the answer they really mean without an experienced attorney being able to seek clarification, use examples, and follow up. On more than a few occasions I have reviewed a Will or, God forbid, Revocable Living Trust, and seen a few items that are not typical. Then I ask “Did you mean to cut out inheritance for the children of a deceased child, meaning your grandchildren?” Then I explain that the text of their document states that if their son dies then his sister, their daughter, gets everything even though their son has two children.
I’m usually greeted with open mouths of confusion and “that’s not what we meant,” or I get “well, his sister will take care of his children.” I then have to explain that 1) their daughter is under no legal obligation to take care of her nieces and nephews, and 2) she is limited in the amount she can provide for each niece and nephew to $13,000 per year or the current gift tax limit in the year she is giving the money away. Then it’s more blank stares usually followed by a general cursing of attorneys (as if it were my fault for screwing up their document and not the people running the online Will service.)
Here are some mistakes I have seen from using an online Will service:
- The spouse was completely cut out as a beneficiary under the Will and everything went directly to the children, which was not intended;
- An ex was named not just as guardian for minor children but was also given control of the money, which was not intended;
- A child with autism receiving program benefits through Medicaid was given a direct gift of $50,000 which would have disqualified them from continuing to receive benefits, which certainly was not intended; and
- Children as young as 18 were given several hundreds of thousands of dollars in an inheritance when it was desired that the money be held in trust until they were much older than 18.
How much would the spouse have to pay an attorney to fight for her inheritance? How much would the grandparents have to spend to fight their former daughter-in-law gaining control of the money when their son only meant to give guardianship? How much would the parents of the special needs child have to spend to fight Medicaid disqualification or spend to have Medicaid reinstated? And how much money would be wasted by 18 year olds being given control of several hundreds of thousands of dollars? A lot more than $99.
Getting signing wrong
While getting the provisions wrong is common enough, it is fairly common that the documents are not even signed right in the first place. In North Carolina and most other states, a Last Will and Testament has to be signed by the person whose Will it is, witnessed by two unrelated and independent witnesses, and then notarized. A few other states have different requirements or three witnesses required. It is shocking how many bright, intelligent people get the signing of their do-it-yourself Wills wrong, which means that they effectively have no Will at all. The worst part of this is that the online Will services are probably protected because they gave correct (if possibly confusing) instructions on how the document is to be signed.
More than a few years ago, I was reviewing the Wills of a pair of PhDs. After reviewing their Wills and asking a series of questions about the terms and “is this really what you wanted?” I got to the signing page and told them something that shocked them. “Well, it appears that you have nothing to worry about with the defective provisions since this is not a valid Will.” Apparently they signed their own Wills, acted as one of the two witnesses on each other’s Will, left the second witness space blank, and did not notarize the document. Of course, they started to get upset with me (again, as if it were my fault they used the online Will service). “Well, I guess what we intended means absolutely nothing!”
I then calmly explained that a court does care what they intend, but the court takes the position that if you REALLY intended for something to be a valid Last Will and Testament, then it would have been signed, witnessed correctly, and notarized. Here are some things I’ve seen with documents being incorrectly signed or witnessed:
- Places where initials were required to chose one item over another were both blank (meaning no choice was made) or both initialed (meaning they approved contradictory statements);
- The witnesses signing where the person whose document it is should have signed; and
- The notary also acting as a witness (which is not legal in most states)
How much money is spent arguing with a court what the person really intended? How much money is spent trying to get people to testify about what they witnessed even if they did not sign in the right place? How much money is spent just trying to get a retired notary to come to court to act as a witness to a person’s intentions? And in the end, how much of this money is truly wasted because it changed nothing? A lot more than $99.
The Reputation of ALL Attorneys Suffer
I recently read an article from an attorney in Oregon who went back and forth in analyzing whether or not LeaglZoom.com was really her competition or not. She analyzed how the company targets customers, how she works with her clients, and in going back and forth discussed how people who try to do-it-themselves end up having a false sense of peace of mind. She even linked to a testimonial from a person who complained that her friend died without a Will and his assets went to probate, so that’s what pushed her to get a Will done… as if having a Will would avoid probate. The fact is she has peace of mind, but it is a false one if she believes having a Will avoids probate. It doesn’t.
What the other attorney did not address is that whether or not she considers LegalZoom her competition or not, people who will go cheap will do-it-themselves, and then their families suffer the consequences of prolonged court battles and legal fees. But the families are not going to end up cursing LegalZoom. They’re not going to end up cursing their dead relative. They’ll end up cursing attorneys for the legal disaster. How much is it going to cost attorneys to lose some drafting business to $99 Wills? Some. What will be the boon in legal fees for estate litigation attorneys? A lot. And what about the cost to the reputation of the legal community, of which most people consider LegalZoom and other online services (…a company formed by attorneys…)? Beyond measure. So before you think of using $99 online Will services, or before attorneys lightly dismiss online Will and document services, think of the real cost—it’s a lot more than $99.