Problems Posed by Drafting Your Own Will


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Many people are influenced into drafting their own wills. They may want to save money by not hiring a lawyer. They may want to maintain privacy and think the best way to do it is to write their own will. They may pick up a do it yourself kit at an office supply store and feel they are competent to prepare a will.

However, writing oneís own will comes with many potential problems that most people are simply not aware of. They may suffer enormous consequences that they did not anticipate. Some of the potential problems posed by drafting your own will include:

Invalidating the Will

When a non-lawyer prepares a will, he or she may make a will that is not legally valid in the state where it is probated. The testator, the person making the will, may fail to sign the will. He or she may handwrite only certain portions of the will, potentially invalidating the will in its entirety. They may fail to have witnesses as required by state law. They may not have the will notarized when it needs to be. They may fail to follow certain formalities regarding the will, such as not making a declaration that the will is their last will and testament.

Invalidating Provisions

If the testator does not manage to invalidate the entire will, he or she may invalidate certain provisions of the will. For example, if he or she signs at a certain portion of the will and then maybe adds additional provisions later, these additional provisions may not be included in the will. If he or she has witnesses who stand to inherit under the will, he or she may invalidate the provisions in favor of these beneficiaries. He or she may try to make a change to the will and may not follow formalities, thus nullifying these provisions. Language may be so vague that a court cannot reasonably interpret it. A testator may try to disinherit a spouse or a child, which may not be allowed in the jurisdiction or which may require specific language to be valid in the state.

Forgetting Contingencies

A person may designate one person to inherit all of his or her property. Alternatively, he or she may give a certain item or portion of his or her estate. However, if this person predeceases the testator, there can be a substantial portion of the estate that was not considered. A testator may not consider these contingent provisions. An experienced estate planning lawyer can include provisions regarding contingencies.

Forgetting Property

A testator may forget to include certain property. He or she may acquire additional property after creating the will and not have any provisions related to it. He or she may have property in another state and may fail to consider the implications of this. A lawyer can take an inventory of all of the property and establish a will that dictates the terms of the distribution of the property. He or she can also contain specific language that describes what will happen in the event that the testator left property to a beneficiary and that property was no longer in the possession of the testator at the time of his or her death.

Not Revoking Previous Wills

A formally prepared will typically states that it is revoking any prior wills or codicils. If a testator fails to revoke previous wills, there can be confusion about which will supersedes the other. An estate planning lawyer can ensure that it is clear that the current will is the valid one and should be followed.

Failing to Update the Will

A person may draft a will under one set of circumstances and may fail to update the will over time. There are several different life events that may necessitate an update in the will. For example, the testator may get married or get divorced, and the will should reflect this change. He or she may have children.

Failing to Safeguard the Will

A testator may do everything correctly and create a valid will. However, he or she may fail to keep the will in a safe location, or he or she may keep the will in too safe of a location like a safe deposit box that no one can access after the testatorís death. An estate planning lawyer can ensure that steps are taken to ensure that the executor has access to the will and to probate it when the time comes.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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