In this article, you will discover:
- The possible dangers of drafting your own will or trust
Yes, you can draft your own will or trust. I have reviewed many self-written wills and trusts during my career, and I have also reviewed wills and trusts created from online forms. I have personally never seen a self-written or online form will or trust that adequately protects the person who created it.
The challenge of writing a will or trust yourself is a formidable one, even with books, software, and online help. Wills and trusts to protect your family are too important to be left to chance.
Trusts, for example, are designed to allow you to fast-track the transfer of property after death without having to deal with the Texas probate court system. If you do a trust properly, the transfer of your assets is a private affair, and you have significant leeway to decide exactly when and how you want these transfers of assets to proceed. Done improperly, you could have a disaster on your hands.
Estate planning documents are easy to find without consulting an attorney. They are readily available in books, online, and generated by estate-planning software. But, by design, those documents cover only the most basic estate-planning needs. Those generic documents are a “one size fits all” document, and they are intentionally as simple as possible so that they are usable by broader audience. Oftentimes, they just give you blank lines in the document that you are expected to know how to fill in.
With wills and trusts, you state who gets your assets and when, and how the transfer of assets to your beneficiaries should occur. Planning for all this requires much more than simply checking off a few boxes on preprinted forms.
Everyone’s estate planning needs are different, and what works for one family will most likely not accommodate the needs of another family. Computer software does not accommodate these differences or any of your unique concerns.
Let me give you an example from a completed revocable living trust I recently reviewed for a couple moving from Florida to Texas. They had completed a trust while still living in Florida, and they used a well-known estate-planning software. The software generated a trust agreement that stated that it was governed by Nevada law, and they missed that. They were shocked when I pointed it out to them.
I explained that Florida is a separate property state, while Nevada is a community property state. The differences between Florida and Nevada law turned the couple’s trust into a nightmare to administer, and the living trust form ended up being inappropriate for their family.
Then there are the legal formalities required to write and sign a valid will or trust agreement. Many state-specific issues can affect a will or trust, including the definition of descendants, anti-lapse statutes, homestead rights, common-law marriages, putative spouses, and elective share laws. It’s doubtful that a generic trust form can adequately address these specific state law issues.
Each state can also have different rules and requirements for signing wills and trusts, for notarization, and for witnesses to the signing. You can invalidate your entire trust if you don’t comply with those rules. The end result may be that your trust will not be honored, and, ultimately, your estate will have to pass through probate.
Another problem with estate-planning books and software programs is evident when you see the same or similar disclaimer on all of them:
“The information contained in this book or program is not legal advice and is not a substitute for legal advice. For legal advice, consult with an attorney.”
While it could possibly save time and money, the result of doing your own will or living trust could prove financially disastrous and end up more expensive than just paying an attorney to draw up an estate plan for you in the first place. Seek out a qualified estate planning attorney familiar with your state’s probate, trust, and estate tax laws to create and maintain your estate planning documents. In reality, the time and money that you spend on the services of a knowledgeable attorney will pay off.