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Do I Need an Attorney to Make a Will?

Chances are, you have seen internet advertisements for do-it-yourself form wills. Those wills are not worth much. As a matter of fact, if you want a will form, we’ve made one you can use for free.  With all of those paid forms out there, and with our free form, you may be wondering if you need an attorney for making a will at all.

And you may be right. If you don’t have much in your estate, why spend money for something that you can get for free. But if you have any significant amount of money or assets in your estate, you still need an attorney even though a free form is available online, from our own website.

Here is why. In form wills, you get what you pay for. They do not come bundled with legal or tax planning advise. In fact, when we called up one of the famous companies offering this service, we had to listen to a warning that said that they do not provide legal advise. Yet, that same website advertized that you will get to speak to a lawyer as part of the package. This sounds like one of the many things advertized on the internet that are too good to be true or plain don’t make sense.

The truth is, a company that sells you a form will is not going to provide you with an attorney or a conference room for an execution ceremony, or a notary, or witnesses to the will, and they will definitely not testify on your behalf if a will is ever examined in court.

In our estimate, every do-it-yourself will is problematic, and over half of them are invalid. Even when using our form, people manage to do it wrong. No offense.

People who try to validate (probate) form wills in Surrogate’s Court often run into trouble even if the will is unchallenged. Form wills are apparent as such, and raise the judge’s suspicion right away. If such a will is challenged, admitting it to probate is much more difficult. The court will require proof of a proper execution ceremony, and it is not satisfied with such proof, it may declare the will to be invalid.

What Will Happen if Your Will is Declared Invalid

If your will is declared invalid, the court will distribute your property according to New York’s intestacy laws. Your estate would still be divided only among your relatives, and the proportions of the distribution will most likely be different then what you would have wanted. You will loose the opportunity to leave out some of your relatives, and children may gain access to large sums of money upon turning 18.

Here is how estates are distributed under New York’s intestacy laws:

  • If you are survived by a spouse and children, your spouse will take the first $50,000 and one-half of the rest of your estate, and your children would share the rest.
  • If you die after your spouse, your children will share equally in your estate.
  • If you have a child that died before you, that child’s children will share equally in that child’s share.
  • If you are not survived by wife or children, your estate would go your parents, uncles/aunts and cousins.
  • If the court will not be able to find any of your relatives beyond a certain degree, the state will take over your property.

Without a Valid Will, Your Family Would “Inherit” Attorneys’ Fees, Estate Taxes, Confusion and Feuds

If you leave behind a business, real estate, or financial papers which it would be a loss to sell at the current market conditions, the court might force your estate to sell such an asset. If you leave behind an asset which requires management, the court might direct your heirs to jointly manage the asset, without defining each heir’s role. Such co-ownership often results in feuding over money and control, which leads to years of litigation and tens of thousands of dollars spent on probate lawyers.

In your will, you may select who will serve as your executor (the person who handles your estate). You would choose someone that you trust, probably a relative and someone who is familiar with your property. Without a will, the family might disagree whom the court should appoint as an executor, which may result in feuding and probate litigation.

Making a will is a good time for tax planning, saving your heirs tens of thousands of dollars in estate taxes. It is also a good time to calculate your estate tax liability and make sure that your estate has liquid assets to satisfy estate taxes. Otherwise, the probate court will force your heirs to sell a part of their inheritance to pay for estate taxes.

If you have young children…

If your children would be under the age of 18 at the time of your death, the probate court will appoint a guardian to manage your children’s share of your estate. Usually, the children’s other parent will be appointed as guardian, which is probably what you would have wanted anyway. However, the court may also require the guardian to post a bond. The guardian would also need the court’s prior permission to use money from your estate to pay for the child’s needs, such as education, clothing, and medical care. The probate court will require annual accountings of how the estate was used to benefit the child. The court will also oversee investments made by the court-appointed guardian. A properly drafted will avoids those problems.

If you and your spouse would ever die at the same time leaving behind minor children, you might make a provision of who will be the guardian of the child’s person. You would probably choose a relative, someone who shares your system of values and beliefs, and someone who the child knows well and is comfortable with.

Most wills are quick to draft and cost less then you think. Call the Law Offices of Albert Goodwin at (212) 233-1233 and make an appointment to devise a cost-effective estate plan.