Here are 7 of the most common errors people make with DIY Wills:
- No Advice. While DIY Will-kits and online services might provide you with a document that looks like a Will, appearances can be deceptive. What you are paying a lawyer for is the advice they provide you along with the Will. It is illegal for anyone other than a licensed lawyer to provide legal advice for a fee, whether that means answering questions or making planning suggestions for how to accomplish goals. So the companies that offer DIY Wills or kits or online documents are always careful to tell you that they are not giving you legal advice, and they ALWAYS recommend that you consult a lawyer if you have questions.
- Poor Information. Questionnaires are used to gather information necessary to complete a Will. But these simply create a starting point for a thorough estate planning discussion. While do-it-yourself options might seem appealing for convenience or cost reasons, they are unable to follow-up with questions to elicit what is often the most crucial information for planning purposes.
- Law. Estate planning is an area of law where there is considerable upheaval at the moment. Pre-printed kits and online sites make no guarantees about being current. Good estate planning lawyers not only keep up with changes to federal and state laws, but will often follow-up with clients to invite them to re-evaluate their documents when major changes in the law occur.
- No Warranty. Online services and form kits include disclaimers stating they cannot be held responsible for problems arising from their documents. Essentially you are buying a piece of paper “as is” without recourse if the document turns out not to do what you wanted. Even small mistakes can be very costly so spending a little more to have a lawyer prepare your documents will ensure you get the right ones for your situation. Plus, should anything go wrong, lawyers stand behind their work and carry insurance to make things right.
- Lack of Flexibility. In my 30 year career, every person with whom I have discussed estate planning has believed that their situation is simple & straightforward, and they initially felt their affairs were too simple to require professional estate planning. In almost every case however, there were unique elements which required careful attention and specific language to accomplish what they initially had thought was a simple task. This is largely due to their misunderstanding of what they can or should be achieving in their modern integrated estate plan.
- Children & Stepchildren. Just filling in a form to indicate you want to leave your assets to your kids is easy right? But if you have stepchildren, unless they are legally adopted by you (which is increasingly rare in Australia), they are not considered your children under most intestacy statutes, including South Australia, and would receive nothing under such a form Will. To later have a share distributed to a stepchild may take considerable litigation and thousands (maybe tens of thousands) in legal fees. Another significant issue is the timing of distributions of assets to children. Without language that creates a trust for minor beneficiaries, the money will be given outright as soon as they turn 18. A lawyer can draft language to provide distributions as you so choose, even if your only asset is life insurance. This could stagger distributions to 21 or 25, and provide discretionary powers such as ensuring the beneficiary is properly accommodated and educated. And don’t forget to appoint a guardian for your minor children (some kit-Wills omit this and other important features of a modern Australian Will.
- Witnessing & Execution. There are lots of little things which can invalidate your Will or estate plan. The absence of a simple word like “absolutely” can completely alter the meaning of a phrase which in turn may require a judge to have to determine the proper interpretation. Signing the Will properly with proper witnesses will make or break your document and the rules vary from state to state so you need the right instructions.
If those 7 mistakes weren’t enough, you should also consider that a Will alone is not the only document you need for an estate plan. Without an Advance Care Directive, power of attorney, trust, or guardianship you may not be providing for your family as you intend.
It is also vitally important that you keep your Will and estate plan up to date – it is not a set-and-forget exercise.
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