You need a will, but do you need a lawyer?
Estate planning can be an uncomfortable subject. Most of us would prefer not to think about our demise, so we avoid it. Or, you may not know where to start, and the added hurdle of finding a lawyer has led you to put off creating or updating your will. The good news is, that the vast majority of individuals don’t need a lawyer to make a will (but you do need a will!)
An online program (like willmaker.com or trustandwill.com) can handle a wide range of common concerns such as naming guardians for minor children and leaving a home, investments, a small business, and personal items to loved ones. These programs will walk you through a step-by-step process. They will provide sound educational information and guidance on key decision points, and then draft a document that conforms to your state’s laws, and provide detailed instructions for how to sign your will to make it legally binding.
For the majority of individuals, a basic will is all you need, and it will function just as well as a document drafted by an estate attorney. In fact, most lawyers start with a standard form that includes the same types of clauses as found in these DIY wills. However, there are certain situations where you should consult a lawyer. More on this below, but first, a public service announcement:
Do I need a Will?
Yes, and stop putting it off
A last will and testament is the single most important component of an estate plan. Not only does it specify how your assets will be distributed to your heirs, but if you have minor children, your will ensures that they’re taken care of by a guardian of your choosing who will raise them should you suffer an untimely death. You also need to name someone to safeguard and manage the assets you leave to your children to provide for their health, education, maintenance, and support until they can manage it themselves.
I get it. We were one of those families who kept putting it off, so there’s no judgment from me. But we were close to a family where a father passed away without a will. Even though guardianship was not an issue since the mother survived, the lack of estate documents created a great deal of hardship for the family at a time when their grief was the most acute. Imagine if the children had lost both parents and their trauma was compounded by the uncertainty of who would care for them now. Now, imagine if your surviving relatives could not agree on who should be the guardian and now the decision must go before a judge to decide. Sadly, this happens, and it’s devastating.
The bottom line is this: don’t put it off any longer, especially if you have young children.
Ok, end of P.S.A. (steps down off soapbox).
When should I consult a lawyer about my will?
There are some situations where you should probably talk to a lawyer rather than rely on the DIY approach.
You may want to talk to a lawyer if:
You have questions about your will or alternative options for leaving your property.
You expect to leave a very large amount of assets and they may be subject to estate tax unless you engage in tax planning. In 2023, the estate tax exemption is nearly $13 million per person, so this does not apply to the vast majority of families.
Rather than simply naming people to inherit your property, you want to make more complex plans—for example, leaving your house in trust to your spouse until he or she dies and then having it pass to your children from a previous marriage.
You are a small business owner and have questions as to the rights of surviving owners or your ownership share.
You need to make arrangements for long-term care of a beneficiary—for example, setting up a trust for a special needs child or dependant family member.
You fear someone will contest your will on grounds of fraud, or claim that you were unduly influenced, or weren't of sound mind when you signed it. Sadly, this happens most frequently in blended families (where there are children from prior marriages) and in situations where a family doesn’t approve of an individual’s lifestyle, or when you and your partner are not legally married.
You wish to disinherit, or substantially disinherit, your spouse. It's usually not possible to do this if your spouse objects, but a lawyer can explain your spouse's rights and your options.
Also, some people simply feel more comfortable having a lawyer to talk through their situation and review their will, even though they anticipate no apparent legal complications.
A third option: create a basic will online, and then seek out a lawyer
It’s far more important that you have a document that covers the most important items now rather than risk putting it off any longer. Even if you checked one of the boxes above, in a couple of hours and a $150 fee, you could go ahead and create a will online to cover the critical basics (care of minor children being the most important). Then, you can take that will to a lawyer at a later time to address the more complicated or nuanced items.
Can a financial planner create my estate plan?
An experienced financial planner is often in the best position to help you craft your estate plan because of their broad expertise in investment, business, tax, and legal matters combined with their holistic understanding of your family, your values, your goals, and your complete financial situation. He or she will help you develop, execute, and understand your estate plan, but they will also know when and who to refer you to for specific legal services and advice from an estate attorney. Unless your advisor is also a licensed attorney, he/she cannot draft legal documents (that’s a big no-no).
