Writing a will is an important piece of the estate planning puzzle. It is the document which allows you to control where your probate-able assets go. It is an important part of the estate plan and, for many individuals, the only part of an estate plan.
However, while writing a will is not overly complicated, it is something that needs to be done correctly with potentially disastrous consequences if mistakes are made.
Practical Advantages to having an Attorney draft your will
The most important advantage to having an attorney is that an attorney who drafts wills for a living, like a probate attorney, has done this before. They have research the case law on the preferred language used. They know who qualifies as an personal representative (sometimes called an executor). They know that the language required for a notary jurat recently changed. They know exactly which questions to ask testator (a term used to describe the person who executes a will). Importantly, many times they have litigated the these issues and gone into the type of minutia and details that you could only imagine. These details matter because with every case and year of experience, attorneys get better at writing a will.
I often tell my clients, this is what I do for a living, I write wills. If you are a mechanic, you are going to do a lot better job of diagnosing and fixing cars than somebody like me who just tries to get the required answers off of YouTube, Google, or the internet.
The next benefit is that attorneys tend to be very precise when drafting documents. It is the type of training that starts in law school, but is cultivated throughout a career. We know that it may turn out fine to say: : “Johnny gets the car.” However, it is often better to say: “My son, Johnny Law, gets the 2017 Ford Mustang if he survives me. However, if he predeceases my, the 2017 Ford Mustang shall go to my nephew Peter Law.” This is the type of detail that legal forms often miss.
Moreover, the actual drafting of a will is only one part of the estate planning process. The will concerns probate-able assets. However, do you know what assets those are? Do you know what is exempt? Do you know what the spousal share is and have you allotted for that? These are all important questions. Every time I draft a will, I am sure to discuss what assets are not included as part of the probate and making sure the client is aware that there are certain accounts which need to be dealt with separately. For instance, the designation of a beneficiary of a payable on death account is something that often gets overlooked in estate planning, but I make sure to discuss this with my clients as I am discussing their will and estate plan with them.
Finally, the last practical advantage to having an attorney prepare your will is that may reputable attorneys offer to keep the original will stored on behalf of the client. When our office does this, we place a will in an expensive fireproof safe so that it is extremely well protected from the potential risk of destruction.
Writing your will : Potential pitfalls of going at it alone or using a form
Have you ever heard the old adages “you get what you pay for” or “an ounce of prevention is worth a pound of cure”? My experience is that both of these directly apply to those who try to perform their own legal work.
I want to let you in on a little secret, lawyers don’t make a lot of money drafting wills for clients. Do you want you want to know where the big money is made? Fighting over a poorly drafted document. Think about it, if a lawyer is just walking through a properly drafted document through the probate process, we don’t really expend a ton of hours on the file. On the other hand, if a brother and sister are fighting over who gets the house on the beach based on some ambiguous language or a question about mom’s capacity, you can bet there will be billable hours associated with that. Therefore, it is almost always much cheaper in the long run to hire the professional to draft the document, than it is to hire the professional later to argue about the true meaning of a poorly drafted document.
Of course, no argument about the pitfalls of the DIY will would be complete without mentioning the Florida Supreme Court Case of Aldrich v. Basile, 136 So.3d 530 (Fla. 2014). In that case, the testator wrote her will on an “E-Z Legal Form” that was commercially available at the time. The will contained a specific clause leaving certain items to Mary, but if Mary died, to James. Mary died before the testator, so at that point, James asked the court to give him everything. The only problem: there were no general devises or residual clause. As such, the will did not account for property not specifically described in the will. Thereafter, two nieces who had not been named anywhere as beneficiaries of the will asked that those assets not named in the will be given to them. Who do you think got the assets which were not named in the will? If you guessed the nieces you would be correct.
The Court in Aldrich held:
There must be a clause in a will that alludes to the after-acquired property in order to avoid distribution of that property through the intestacy statute. Although Mr. Aldrich was the sole devisee under the will, without a residuary clause or general devises, only the property specifically referenced passes to him under the will. Further, if a testator does not allude to after-acquired property in any way, a court would have difficulty deciding how to divide the after-acquired property between multiple beneficiaries. In that instance, the court would be required to equitably distribute the testator’s property. This is a task that has been reserved for the Legislature and has been accomplished through the intestacy statute.
The reason that the court came to this decision is clear, that is what they thought the intention of the testator was by the documents that they drafted. The court went on to say that the rules of statutory construction apply unless a contrary intention is indicated by the will. Here, because the testator only devised specific assets in the will, the court reasoned that the remainder of the assets would be dealt with under the provisions of intestacy statute (that is the statute that deals with the assets of persons who do not have a will where as a general rule the estate goes first to your closest family members.)
This case highlights the potential problems with writing a will on your own or using a form. You don’t know what you don’t know. The person whose will was appealed all of the way to the Florida Supreme Court could have never guessed how much litigation would have been created over what was touted as an easy form. She may have thought she was saving time and money by using a form, but that was actually the farthest thing from the truth. Her decision to use that document created more expense.
Final Thoughts
When it comes to writing a will, I always recommend the client write a will through an attorney. The language of writing a will does not need to be complex, but it does need to be correct. For most clients, a simple will can be drafted for amounts starting around $500.00, but provides many times that amount in value and peace of mind. Most of the time, when clients come in, we also have them draft a power of attorney and health care designation as part of a package which allows the client to walk away with three basic but powerful legal documents for a reasonable cost.
