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Using an online service to prepare your will can result in costly mistakes and may altogether fail to properly transfer your assets. Even if you have a relatively simple estate and plan to leave all your assets to your spouse or children, an estate planning attorney provide for family situations that an online will cannot.
Proper Provisions in a Will
You may also fail to consider include certain provisions in your will. If you have minor children, you must create trusts that are triggered upon your death. What if your spouse or beneficiary was disabled and needs to inherit the assets through a supplemental needs trust? If you are not aware of the difference between non-probate and probate assets, you may not be allocating your assets in the manner you intend.
Additionally, if certain factors are present, it may be advisable to avoid probate all together and create a living trust. An online service cannot provide the necessary guidance and planning to properly navigate these situations. An estate planning attorney is able to use years of experience to guide the client in the process.
Proper Execution of a Will
In New York, for a Last Will and Testament to be considered valid the following formalities must be followed in its execution: (1) The instrument must be signed at the end by the testator; (2) The testator must sign the instrument in the presence of the attesting witnesses; (3) The testator must declare to the attesting witnesses that the instrument is his or her will; and (4) There must be at least two attesting witnesses.
When an attorney supervises the execution of a will a presumption of due execution arises, meaning 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, it must satisfied that the will was properly executed. If a lay person executes a will themselves without attorney supervision they run the risk having the will denied probate.
If you execute your own will at home without the supervision of an attorney, there is no presumption that the will was executed property. If you did not execute the will properly and did comply with the above mentioned formalities, then you run the risk of having that will declared invalid and that disinherited child would inherit even though it was contrary to your intentions.
Do it Yourself Estate Planning Blunder
At Burner Law Group, we have seen some do-it-yourself estate planning blunders. One of the most memorable is an estate where the testatrix wrote her own will on a legal pad. The terms of this will gave the decedent’s entire estate to her boyfriend of over twenty years. This will was executed in the hospital in the presence of two nurses. At trial, both nurses testified that they knew that the document for which they were acting as witnesses was a will, despite the fact that the testatrix never stated that the document was her will. Both witnesses were clear in their testimony that the testator never declared the document to be her will, despite the title of the document clearly stating that the document was her will.
After a trial on the matter, the court held that testimony of the witnesses did not support due execution. This was because there was no publication of the instrument offered for probate as the testator never declared to the witnesses that the instrument was her will.
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 the validity of a will in the Surrogate’s Court. This will save your love ones a lot of time, money and aggravation after your death.
