Question: My friends used an online service to prepare their Wills. They signed them at in the presence of their neighbors. They said it was much less expensive than going to an attorney to have a Will prepared. I am planning to disinherit one of my children but I am hesitant to have my Will prepared by an online service. Can you give me some advice?
Answer: In my career, I have seen some do-it-yourself at home estate planning blunders. One of the most memorable is an estate where the testator signed her will at the bottom of every page, but not on the clearly marked signature line on the last page. This made the entire Will invalid. I have also had circumstances where the person asked witnesses to sign the document but never told them that it was a Will they were witnessing.
It is important to know that when an attorney supervises the execution of a Will it creates a presumption of “due execution.” This means that there is a presumption that all of the proper statutory formalities were followed when the Will was signed. If the Will execution ceremony is not supervised by an attorney, this presumption does not exist. In order for the Surrogate’s Court to admit an unsupervised will to probate, the Court must be satisfied that the Will was properly executed. If a testator executes a Will without attorney supervision, he or she runs the risk of violating the provisions of the Estate Powers and Trust Law and having the Will denied probate.
This is especially dangerous if you are planning on disinheriting one of your children. If you execute your Will at home without the supervision of an attorney, there is no presumption that the Will was executed property. If Court declares the Will invalid, then the child you disinherited would inherit even though it was contrary to your intentions. This could be a lengthy and expensive legal battle that could have been avoided by utilizing an estate planning or elder law attorney to prepare your Will and make sure it is properly executed.
In addition, the work performed by an attorney is far more than drafting documents. Your attorney is familiar with trust and estate laws, asset protection, estate and income taxes and as well as capital gains taxes connected to probate and lifetime gifts. At the end of the day, paying an attorney to properly prepare and supervise the execution of your Will and other estate planning documents is far less costly than litigating over a contested estate in the Surrogate’s Court. This will save your love ones a lot of time, money and aggravation after your death.