With the emergence of DIY estate planning software and online tools, you might think you have access to everything you need to easily and affordably prepare your own estate planning documents.
While you can certainly do this, it may not be the best idea to skip the attorney’s office if you want to ensure that your documents are legally binding and properly crafted. Estate planning is a complex process, and mistakes are bound to happen — but many are financially taxing or difficult to fix, especially if they’re not spotted until after your death. In addition, estate planning often requires knowledge of how the probate process will work after you die and knowledge of how to use particular estate planning documents and tools to avoid or limit the impact of probate on your estate.
While a DIY estate planning approach is often better than not having an estate plan at all, it’s certainly not risk-free. Before you download any forms from a DIY website or purchase a DIY package at a local retail store, here are a few important considerations.
What is DIY estate planning?
DIY estate planning is essentially just drafting your key estate planning documents — your will, your powers of attorney, your advance medical directives, etc. — using templatized forms available online or from a retail store for a fee. While these forms may be a good starting place for listing and organizing your assets, they do not always include the precise language that must be included in a will to make them admissible/valid in the eyes of a probate court.
What can go wrong when you draft your own estate planning documents?
There are many risks of tackling estate planning without legal guidance. Here are few common errors you might encounter:
1. Failure to meet signature requirements
A valid Virginia will must be signed by the testator and at least two witnesses who are not beneficiaries. These witnesses must sign in the presence of the testator, at their direction. Failure to meet these requirements will render your will invalid — and a DIY estate planning tool might not remind you of this requirement the way an attorney would. In some instances, if one of the witnesses you used is not qualified to serve in that role, this might also render the Will invalid, which is why it is best to use a notary public in addition to the two witnesses.
2. Improperly funded trusts
When forming a revocable living trust, you’ll need to fund it for the trust to be valid. In other words, depending on the purpose of the trust and the types of assets you own, you may need to re-title certain of your assets from your personal name into the name of the trust. If you don’t, your heirs may end up going through probate court and incurring probate taxes that could otherwise have been avoided. An estate planning attorney can offer specific, personalized guidance when creating and funding your trust, in a way that a DIY tool may not.
3. Not accounting for state-specific laws
Every state has different estate planning laws, and it’s crucial you follow them to the letter if you want a probate court to deem your will as valid. Some DIY tools provide generic forms that do not account for certain specific Virginia provisions. Without legal guidance from an experienced local attorney, you might not be complying with the right regulations in your area.
4. Unique situations unfit for DIY
Many situations are too unique for basic DIY estate planning forms. For instance, maybe you have assets in multiple states, or perhaps you have children from a previous marriage, or perhaps you want your home to be preserved as a place for your children to still live with a legal guardian after your death. Whatever the case, unique situations require unique solutions, not a one-size-fits-all approach and often a will alone is not sufficient to meet your needs.
Why hire an estate planning attorney?
If you choose to handle your own estate planning needs, you may be setting yourself up for unnecessary complications that could impact not only you, but also your executor and your beneficiaries. It doesn’t matter how much time you spend drafting your own estate plan, or how detailed you are — one simple mistake can invalidate your entire will, trust or other legal document.
An attorney can help you avoid the above mistakes and provide guidance for your specific circumstances. No matter how simple you think your circumstances are, a templatized form is unlikely to thoroughly and properly address every person’s exact wishes for their estate.
Bottom line? An attorney can help you craft wills, trusts, powers of attorney, and other estate planning documents that are appropriate for your situation and include the proper language to ensure their validity after you pass away.
Get help with your estate plans
The Law Office of Patricia E. Tichenor, P.L.L.C. has nearly 20 years of experience serving the needs of Virginia families. Contact us today for help with creating or updating your estate plans.