Can’t I Just Write My Own Will?

By Mark T. Coulter, Esquire
Estate Planning Attorney

Pennsylvania is perhaps the easiest state in the U.S. for people who want to create their own “legal” Last Will and Testament. All that the law requires here is that your Will be in writing, signed at the end, and reflect your intention to dispose of assets at your death. So anyone should be able to do that, right?

A Recent Example

There is a big difference, however, between a Will being “legal” and a Will being “good”.  A recent case I dealt with brought this issue back to the surface to highlight the difference. A married couple without children (we can call them Bill and Mary Smith) were going on a trip by airplane, and elected to write their own Will, which in essence provided:

“If Bill Smith and Mary Smith are both deceased at the same time, we give our house at 121 Main Street and all of our bank assets to Mary’s niece Susan Jones and her nephew John Jones. Michael Smith, brother of Bill, is in charge of carrying out these instructions.”

They signed and dated the document at the bottom. Fortunately, they successfully survived their flight, and indeed lived for several more years. Mary died a few year ago, and Bill passed away recently. At death there was a checking account, a small stock account, a home at 200 Maple Lane, and the contents of the home. How does the estate work? Sure, we all understand what they said, but how does it really work?

The first question is whether they even have a Will. It’s a close call whether or not this note jotted on a piece of notebook paper qualifies as a Will, but let’s say it does for our exercise.

Is the Will relevant? Bill and Mary seemingly signed the Will in contemplation of the risk of dying together if their plane went down, thus the reference to “deceased at the same time.” If they don’t die together, but instead several years apart, does the Will even apply? If not, this condition-based Will is disregarded, and instead the family has to go through intestacy proceedings in court to administer the estate to whomever are the next of kin (technically, his legal “intestate heirs at law”).

Whose next of kin? Bill died owning all of the assets after Mary’s death, so any assets not covered by the Will go to Bill’s family (in this case, to his brother Michael), not Mary’s family.

Is the Will complete? Bill and Mary didn’t say who gets the stock account, or the personal property located in the home, for example. As we often see with self-created Wills, the document is likely incomplete, again leading the family to go through intestacy proceedings in court to administer the estate to whomever are the next of kin.

Even worse, this process (and not getting everything) disappoints Susan and John, who now hire an attorney to represent them and litigate in court whether it should be inferred that they should get the stock instead of Michael. That means that Bill’s estate also needs to hire an attorney to represent the Executor. Now the family can fight it out in court for a couple of years.

Who gets the house? The Will referred to their residence they owned at the time the Will was written. Bill doesn’t own that home any longer, since he moved to a smaller home after his wife passed away, so that gift referencing the old home is invalid. Instead, since the Will doesn’t otherwise provide for the new home on 200 Maple Lane, the family has to go through intestacy proceedings in court to administer the estate to whomever are Bill’s next of kin.

Who is in charge? While the “Will” puts Michael in charge of the instructions in the document, it does not name an over-all Executor. As we’ve seen, the Will doesn’t cover everything. Instead, it is back to court to determine who should serve as the full Executor.

Such a simple situation, and yet so many problems arose. I’m sure that Bill and Mary were proud of the money and time they saved doing their own quick Will, and took comfort in thinking they had been responsible adults. Instead, they left their families disappointed and facing delay, expenses, loss and struggle to resolve their estate.

Hidden Problems in Do-It-Yourself Wills

The above real-world example doesn’t even address some of the other issues that arise with “do it yourself” estate planning. It is not surprising that people don’t spot the problems with their own Wills because it isn’t a part of their daily world. Some of the hidden questions that don’t get asked or answered may include:

• How will my unique personal goals be realized?
• What if there are handwritten changes to a Will?
• What if there are more assets that are discovered later?
• Who pays the death-taxes on assets received through a Will or other beneficiary designation?
• What happens if a beneficiary is already deceased?
• What if there is “form” language in the document that is contrary to the true plan?
• What if there is legalese (or Latin) used in a generic form which isn’t understood or which changes how the Will works?
• What if there is a prior Will which does (or doesn’t) conflict with the new one?
• What if the document uses the wrong title for a fiduciary (such as naming an Agent or Power of Attorney instead of an Executor)?
• What does a beneficiary get if an asset described in the Will is gone? Or has changed (new bank account, different car, etc.)
• What if some part of the Will is ambiguous or unclear?
• What is some part of the Will is illegible, or destroyed?
• If there is debt, such as a car loan, who has to pay for that?
• What happens if someone contests the Will?
• Will my Executor need to purchase a Surety Bond before serving?
• What if the Will is inconsistent with a prenuptial agreement? With other beneficiary designation? With joint-ownership on the asset title?
• What if a beneficiary is a minor?
• What if a beneficiary is incapacitated, or is receiving governmental benefits?
• How do we prove the Will was actually signed by the right person?
• How do we prove the person was of sound mind, and not pressured?
• What if a beneficiary gets a divorce, or gets sued; are they protected?

These are but a few of the issues that estate planning professionals consider when helping clients with a Will, a trust, or other planning strategies. Sure, you can do it yourself, or use some generic fill-in-the-blank form created by some stranger for some other stranger, but that doesn’t make it a good idea. I can make my own penicillin from a moldy cantaloupe rind, but I don’t.

We Can Help You

Sometimes in life it is just worth it to get things done right. When we are talking about your final gift of everything you have left in this world to the people you care about the most, I suggest that spending the time, effort and money to get it done right makes obvious sense.

If you don’t have a current estate plan, or are wondering whether your planning is adequate to take care of your unique needs, we encourage you to take advantage of our standing offer of a free initial consultation with one of our estate planning attorneys to discuss your goals and concerns, and to review the various strategies available to protect you and your loved ones. You can call our office, contact us through our website, send us an email, or even (for this part) send us your own handwritten note.

About Our Law Office

At the Estate Planning Centers at Coulter & May, P.C., we devote our practice to estate planning and assisting families through such transition times with estate and trust administration counseling. We offer guidance and advice to our clients in every area of estate planning, and offer comprehensive and personalized estate planning consultations. For more information or to attend an upcoming seminar or to book a consultation directly, please contact us at (412) 253-7526 or visit us online at www.estateplanningcenters.com.

Disclaimer: The information presented in this article is a conversational summary of a complex area of law and should not be construed to constitute legal advice. No person should rely upon the content of this article for making any decisions, and should instead consult with appropriate legal and tax professionals.