On the surface, making arrangements for your property in the event of your death seems easy. Figuring out what you have and who you want to get it if something happens to you is all that is required, right?
Enter: The meteoric rise of do-it-yourself-will websites.
Sites like legalzoom.com and uslegalforms.com promote the ability for users to complete their own wills within minutes. However, before we get to some of the pros and cons of creating your own will, let's first break down what a will is and how it is used to best carry out the intentions of its creator, along with why you should consult a law firm to draft your estate plan.
Passing on Assets
When archaeologist Howard Carter discovered the tomb belonging to the Egyptian pharaoh Tutankhamun (“King Tut” to you and me), over 5,000 items were found buried along with the ancient ruler, including thrones, musical instruments, food, sandals, and other royal luxuries - and this was after the tomb had already been robbed at least twice! Needless to say, good ol' Tutty received some bad advice about how best to distribute his personal wealth upon his passing. Most of us, thankfully, want to leave our assets behind to loved ones or to charities near and dear to our hearts, not buried under the sand for thousands of years. Wills are the most common documents for doing precisely that.
A will is a legal document that lays out your instructions for the distribution of your assets upon your passing, as well as for providing directions for care and support of minor children. As long as your document fulfills the basic requirements of your state, its provisions will have the law on their side and be enforceable if it is ever brought before a probate judge. Common features of wills include the naming of an executor, who is responsible for carrying out the will's terms, and the beneficiaries who will receive the decedent's assets.
On to the requirements...
In most states, you must be 18 years old to make a will. Many jurisdictions also take into account special circumstances, such as in the cases of emancipated minors or underage service members in the armed forces.
It is not enough to scribble a note that discusses how you would like your assets to be divvied up upon your death. Language must be included in the document that clearly states it is your last will and testament. Enough said here.
Most states require two people to witness the signing of a will. It is normally not necessary that the witnesses actually read the will, just as long as they witness the testator signing his or her own will. In addition, in many states a witnesses to a will cannot be an interested party, meaning they cannot be individuals who benefit in any way from the terms of the will. Even if a state allows a witness to be an interested party, it is good practice to choose witnesses who are not interested parties to avoid any challenges to the will.
It's a legal document - you gotta sign it! Special circumstances - such as physical/bodily limitations - often allow for someone else to sign for you, as long as their signing occurs with your consent and in your presence.
A frequent attack against wills in probate courts is that the testator - the person who made the will - lacked the testamentary capacity at the time he or she created it. Reasons for lack of capacity may be things like Alzheimer's or dementia, however even people suffering from such conditions have been deemed to have - one of my favorite legal terms - “lucid intervals.” Of course, if such a situation were ever brought before a probate judge in the matter of a testator who was known to suffer from such a condition, witnesses would be needed to describe his or her mental state at the time the will was made. Therefore, if there is reason to believe that a testator's capacity could be called into question later on, it would be highly recommended to secure a written letter from a healthcare professional that supports the will-maker's mental capacity at the time the document was created.
Absence of Fraud or Duress
Lastly, if it can be proven that you made your will under fraudulent circumstances or under duress, such as under threat to include or exclude certain provisions, this would result in your will being entirely voided. In such an instance, either a previously made will would take its place or, if there is no other will, then you would be deemed intestate (having died without a valid will).
Does a Will Require an Attorney
In a nutshell, no, you don't need an attorney to help create your will. But, bypassing any of these important steps could lead to very undesirable results. An qualified and experienced estate-planning attorney will be able to tell you the specific requirements of the state in which you create your will. There are other nuances to writing your will where an attorney could provide guidance, such as including specific language in the event you purposely choose to leave a close relative out of your will. For example, if you have three children and leave assets to two of them, and simply choose to omit the third one's name from your will because you wish to leave him/her nothing, some jurisdictions will allow for the third child to still claim some of your assets because it may not be clear whether the child was purposely omitted from your will. An experienced attorney would be able to help you address such a decision in your will.
It is easy enough to research your state's specific requirements for creating a valid and legally enforceable will. The above-mentioned websites make it a point to have the user select the state in which the testator lives, so as to incorporate that state's requirements in the creation of the will. Ultimately, the decision is yours on whether to create your own will or seek assistance from a legal professional, but the frequent horror stories from do-it-your-selfers who made small but legally-important errors that led to invalid wills should be taken seriously. Either way, the goal is to have your assets distributed exactly the way you intended and only by working with an qualified and experience attorney can you remove all doubts. To discuss creating a legally valid will, contact our qualified and experienced Colorado estate planning attorneys through the contact link on our website.