Q: Do I need to seek legal advice for my will or can I make my own using an online service? What things do I need to consider when making up my will? Are online wills valid?
A: If drafting your Will online may seems “too good to be true”-- the answer is… it is! The end result can be costly and detrimental to your estate planning goals.
There is a reason that lawyers draft Wills. It is always best to seek legal advice before creating any legal document, including your last will and testament. Although there are many sites and software out there that can assist in drafting your will for a relatively low fee, these resources do not give you advice or counsel necessary to formulate an effective estate plan. None of the programs take into consideration real life scenarios, statutes and case law that can drastically affect your estate plan. Don’t be “pennywise and pound foolish.”
A last will and testament will direct where you want assets to go after you die. However, a will should go beyond the simple distribution of assets. Your will can protect your heirs as well. For example, if your will directs assets be payable to your children, you may want these distributions to be paid out to them in a trust. One reason to create a trust within your last will and testament is to give your children creditor protection while also ensuring that the assets are not included in their estate. This can protect them from future creditors, bankruptcy, divorcing spouses, or estate tax. If your beneficiary receiving government assistance, you will want to make sure his or her distribution is paid to a Supplemental Needs Trust in order to protect their inheritance and ensure that the beneficiary doesn’t lose their government benefits.
Beyond the who and what of asset distribution, your last will and testament can also control other issues that arise after death. If you have minor children, you will want to name a Guardian for them, this can and should be done in the will. If you are married, you should have a full understanding of a spouse’s right to share in your estate under New York state law and how it relates to your estate plan. Other considerations include what the estate and income tax implications will be; the likelihood of an estate plan being contested; and if your will follows the statutory drafting requirements to constitute a valid will under New York law.
Furthermore, passing your assets through a last will and testament may not be the best plan for you. A trust may be the better option depending on your estate planning objectives, family structure, and asset structure. A trust maintains the same benefits as those found in a will, but it is a private document that does not go through the probate process and can provide asset protection during your lifetime.
For all of these reasons, it is best to seek professional advice prior to drafting any estate planning documents. An elder law and estate planning attorney can review your assets, as well as collect all information as it relates to your personal life, in order to determine the best plan for you and your beneficiaries to ensure your goals are met through the drafting of your estate planning documents.
- Michal Lipshitz, Esq. and Nancy Burner, Esq.