Testators who draft an online Do-It-Yourself will may be saving now, but will probably end up paying for it later.
Will kits used to be the domain of stationers across the country, but these days the internet has made it easier than ever for people to draft their own testamentary documents via online tools. Still, whether you come across them in their digital or analog form, DIY wills are not the best estate planning tool.
I will not argue that lawyers can compete on price with online options, but the extra cost of hiring a lawyer pales in significance next to the value of most people’s estates. And in my view, it’s worth spending a little more to make sure this important job is done right.
People work hard all their lives to accumulate the assets that will form their estate after they are gone, and for a relatively small investment in legal advice, clients get a priceless return: the security of knowing that their final wishes will be honoured.
Here are my top five reasons to hire a lawyer to draft your will, rather than doing it yourself online.
1. Avoiding Intestacy
Alongside my estate planning practice, I also perform work in estate administration, which means I’ve seen more than my fair share of horror stories involving DIY wills.
Each jurisdiction has its own laws governing estates, and it’s not always easy to tell whether online forms and instructions are designed to meet the requirements of the correct province — or even the right country. In many cases, simple avoidable errors involving the content, witnessing or signature of the document can invalidate it, resulting in an intestacy.
Dealing with an intestacy is not only a hassle for beneficiaries — it also defeats the very purpose of estate planning. In Ontario, the strict rules set out by the Succession Law Reform Act determine how assets are distributed on an intestacy, rather than the wishes of the deceased.
2. Avoiding estate litigation
Even when an online will meets the minimum standards of a valid will, they are often replete with inaccuracies and ambiguities that encourage confusion and conflict between beneficiaries.
As a result, many DIY wills end up in litigation, where the legal costs associated with the dispute are often absorbed by the estate itself, quickly eating up any savings the testator made at the drafting stage.
It’s not possible to eliminate the chance of a will challenge initiated by a disgruntled beneficiary, but an experienced estates lawyer can reduce the probability of litigation by ensuring that the terms of a will clearly and accurately reflect the intentions of the testator.
3. Tailored service
Anyone with complex estate planning needs has an even greater incentive to steer clear of online DIY options and seek legal advice when drafting a will.
In all my years as an estate lawyer, I have come across countless scenarios where the unique circumstances of a client required special consideration in their estate planning decisions. For example, in our increasingly connected world, more and more testators must take extra steps to ensure the proper distribution of assets when they have either property or beneficiaries based outside of the country.
People with minor children or dependants with disabilities will also want to consider the need for various types of testamentary trusts in order to make sure that their offspring are properly taken care of — none of which can be set up using an online will provider.
4. Tax savings
Minimizing the tax burden on an estate is a large part of a lawyer’s job, and there are numerous opportunities for probate tax savings that an online service may not alert a testator to. Business owners, in particular, may wish to consider the possibility of dual wills to separate their assets requiring probate from those that do not.
On the flip side, an experienced lawyer can identify and correct missteps made by testators with a rudimentary understanding of tax laws. For example, many people are tempted to add beneficiaries to title in an effort to reduce their probate fees without considering the other potential tax implications of such a transaction, including a possible capital-gains liability.
While a joint tenancy may make sense in your own case, a lawyer can help you make sure by talking you through any red flags or unanticipated consequences.
5. Picking the right executor
The role of executor — also known as the estate trustee — is not for everyone.
While many online DIY sites will suggest some combination of family members or trusted friends, they don’t always account for the heavy burden of responsibility that comes with this potentially draining job.
Even if someone can step up, they may not be willing to make the required commitment.
Appointing more than one trustee may sound like a good way to share the load, but this can cause more problems than it solves if the personalities involved are prone to clash and there is no mechanism for breaking an impasse during the administration of the estate.
An experienced lawyer can help you weigh up the pros and cons of each option for executor, and ensure you make the most appropriate appointment for your estate. If you are interested in drafting or updating your will and have questions, schedule a consultation with me and we can review all the critical issues together.