Writing Your Own Will
Why You Should Never Write A LegalZoom Will: 18 Reasons
New York Estates Attorney Robert Friedman advises buyers to beware of DIY Wills.
There are 18 reasons why you should never prepare a Will through LegalZoom, Rocket Lawyer, Nolo, and other do-it-yourself (“DIY”) document preparation websites. As a New York estates and Elder Law attorney for over 41 years, I have seen these three “Ms” of estate planning and Wills perpetuated by DIY Will products:-
- Mistakes and
More likely than not, DIY Wills are incorrectly completed.
Warning: failure to have your New York Will and other estate planning documents properly prepared and witnessed by an attorney can result in:
- Tens of thousands of dollars in litigation costs for your estate and family;
- Relatives that you hate receiving your estate;
- Unnecessary taxes;
- Long delays in settling your estate;
- Leaving your minor children without proper guardians and trustees;
- All of your assets going to the nursing home;
- Placing your business and investments in jeopardy; and/or
- Your estate being controlled by unqualified executors and trustees.
But you don’t need to take my word for it :
- Read the fine print on the DYI websites, as explained below; and
- Read Consumer Report’s verdict in its September 2012 magazine:
“For a fraction of what you’d pay a lawyer, websites such as LegalZoom, Nolo, and Rocket Lawyer can help you create your own will, power of attorney, and other important legal documents. But can they really save you a visit to a lawyer? We recently evaluated those three services. Using their online worksheets or downloads, we created a will, a car bill of sale for a seller, a home lease for a small landlord, and a promissory note. We then asked three law professors—Gerry W. Beyer of Texas Tech University School of Law, who specializes in estates and trusts; Richard K. Neumann of Hofstra University, a contract specialist; and Norman Silber, an expert in consumer and commercial law at Hofstra and Yale—to review in a blind test the processes and resulting documents. The verdict. Using any of the three services is generally better than drafting the documents yourself without legal training or not having them at all. But unless your needs are simple—say, you want to leave your entire estate to your spouse—none of the will-writing products is likely to entirely meet your needs. ..”
LegalZoom, Rocket Lawyer, Nolo, and other DIY document preparation websites want you to believe that preparing a Will is as easy as filling in the blanks on standardized forms by:
- Enticing you with a cheap product and a process that takes less than half an hour to complete.
- Assuring you with testimonials of customers professing that their product has given them “peace of mind.”
- Providing a portal that gives you a “general understanding of the law” even though the information it contains is “not guaranteed to be correct, complete or up-to-date.”
- Suggesting that their documents will be just as effective as those an attorney creates by garnering endorsements from famous attorneys, such as Robert Shapiro. In short, despite a disclaimer that their document preparation services are not a substitute for the advice of an attorney, they try to convince you that the advice of an attorney is simply not necessary.
There are 18 reasons that you should never prepare a New York Will through LegalZoom, Rocket Lawyer, Nolo, and using other DIY document preparation products:
- You are not getting legal advice. LegalZoom does not purport to give legal advice. In fact, LegalZoom specifically states that in its disclaimer where it admits its inadequacy and unreliability. Summarizing LegalZoom’s own disclaimer:
- LegalZoom is not a law firm,
- The employees of LegalZoom are not acting as your attorney.
- LegalZoom’s legal document service is not a substitute for the advice of an attorney.
- LegalZoom does not review your answers for legal sufficiency, draw legal conclusions, provide legal advice or apply the law to the facts of your particular situation.
- The legal information on LegalZoom’s website is not guaranteed to be correct, complete or up-to-date. (The problem is that the documents LegalZoom creates could be completely ineffective).
- LegalZoom is not permitted to engage in the practice of law.
- LegalZoom is prohibited from providing any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms or strategies.
- LegalZoom is not responsible for any loss, injury, claim, liability, or damage related to your use of their website or any site linked to their site, whether from errors or omissions in the content of our site or any other linked sites, from the site being down or from any other use of the site. In short, your use of the site is at your own risk and LegalZoom is a website with forms, which may have errors. Buyer beware.
- Your Will may not be duly executed, which are grounds for a will contest. To be valid, Wills must be witnessed by at least two witnesses and you must declare that it is your Will that you are signing and ask the witnesses to witness your signature. In probate cases there is a presumption that an attorney drawn Will with the Will signing supervised by an attorney was validly executed. With those Wills, in a contest, the burden of proof is on the objectant claiming improper execution. A non-attorney supervised Will does not get this presumption, so the burden is on the proponent to prove proper execution. Sometimes this is a very large hurdle. Think about this before you “save money” by doing it yourself.
- No cost savings. Often attorney- drafted Wills do not cost much more than DIY Wills. Furthermore, Surrogate Courts are very strict when it comes to compliance with testamentary formalities. Nothing substantive can happen in a Surrogates Court proceeding until “jurisdiction is complete”. This occurs when all the interested parties have either signed a Waiver or have been served. In a probate proceeding, all parties who would have an inheriting interest under intestacy are entitled to notice. This is true even if they are not named in the Will. Therefore, an improperly drafted Will could result in costly Will contests or construction proceedings.
- Eighty percent of people who fill in blank forms to create legal documents do so incorrectly according to Legalzoom. Despite this disclaimer, LegalZoom tries to reassure its customers that professionals are there to help; that customers can have “peace of mind” knowing that LegalZoom professionals will customize their Will based on their legal decisions. But LegalZoom is not a law firm. It cannot review your answers for legal sufficiency, draw legal conclusions, provide legal advice or apply the law to the facts of your particular situation.
- Mistakes in your Will may not be discovered until you are deceased. People who use LegalZoom and other DIY estate planning kits end up with a false sense of security. They create documents that they believe will address their estate planning needs. But with estate planning documents, they are unlikely to discover their mistakes because the mistakes will not become evident until after they become incapacitated or die. And the people who will be left to deal with the mistakes are usually the people the documents were intended to protect.
- New York Medicaid eligibility and estate recovery consequences of your estate plan should be discussed and analyzed by an attorney.
- In terrorem clauses or no contest clauses (“ITC”) must be carefully drafted to be effective. ITCs are used in wills and trusts to prevent attacks by disgruntled beneficiaries. New York is among the minority of states that enforce ITCs clauses, regardless of whether the objectant had probable cause or acted in good faith in initiating proceedings. There are a few exceptions to this. ITCs need to be drafted broadly enough to cover your business interests.
- Each state has its own laws regarding Wills and probate. The DIY form may not be specific to New York law.
- With a DIY Will form, you do not have the advice of an attorney who is licensed to practice law in New York, with estate planning experience, continuing legal education requirements and professional liability insurance. Unlike the DIY websites, attorneys cannot disclaim their responsibilities to you, which gives them us a huge incentive to make sure they keep up- to- date on legal developments so that their clients’ needs are met. To safeguard clients, attorneys are bound by certain rules of professional conduct and are accountable to state bars for unprofessional behavior. For example, rules require that an attorney to be competent and diligent in their representation of clients. Attorneys are prohibited from accepting or continuing employment in a legal matter in which the attorney knows is beyond his or her competence, or of neglecting a legal matter entrusted to him or her. Aggrieved clients can file complaints for misconduct with the state bar, which will conduct an investigation. An attorney’s license to practice law can be suspended or revoked in certain instances. Additionally, in the event that an attorney makes serious mistakes in handling a case, he or she can be sued for malpractice. Professional liability insurance can often make the client whole. This is in stark contrast to document preparation services, which specifically disclaim any responsibility if something goes wrong. A growing number of attorneys, like Friedman & Ranzenhofer, PC, are using technology to increase access to affordable legal services. And we take great care to keep abreast on issues affecting estate planning and Elder Law,
- DIY Wills do not thoroughly explain and analyze the differences between your probate and nonprobate assets. Read how to avoid New York probate. We have our clients complete a WILL INTAKE FORM so that we can discuss the consequences of probate vs.nonprobate assets.
- DIY Will websites do not advise you on how to select a qualified and capable executor. See our updated NY Executor’s Legal Survival Guide.
- A New York attorney can advise you on the best ways to store your Will for safekeeping, including storing it for you.
- Laws are constantly changing and are subject to differing interpretations because of new case law, regulations and statutes. Laws are not static. Unlike DIY websites, attorneys keep up with these changes in order to best advise their clients. See our Covid-19 Crisis NY Estate Planning page for the latest updates.
- DIY Wills are not flexible or customizable. You need the services of an attorney to evaluate your individual needs for revocable or irrevocable trusts, and gifts; to design your Will to account for death, divorce, marriage, birth or adoption of children or incapacity of beneficiaries, guardians, trustees and executors and to provide for disabled beneficiaries with special needs on SSI or Medicaid.
- Discuss these goals, needs, and situations with your legal, tax and financial advisors to determine which estate planning techniques meet your needs:
- Rivalry or incompatibility among your children.
- Estrangement from your children or other relatives.
- Asset Protection.
- Qualifying for Nursing Home Medicaid.
- Minimizing Property, Estate, Gift, Income, and Corporate Taxes.
- Providing for your Children after a Second Marriage.
- Minimizing Legal Fees.
- Financial Security for Your Family.
- Income, Cash Flow, and Liquidity.
- Maintaining Control of Your Assets.
- Business Succession – Continuity of Ownership & Management.
- Minimizing the Costs and Delays of Probate.
- Medical Decision Making in the Event of Disability.
- Financial Management in the Event of Disability.
- Providing for Family, Dependents, Charities, and Pets.
- Preventing Elder Financial Abuse.
- Updating Wills, Powers of Attorney, Health Care Proxies, Living Wills, or Trusts.
- You and your family deserve the advice of a lawyer who considers the facts of your particular situation. You deserve legal advice that is correct, complete and up-to-date. LegalZoom by its own admission does not provide that. Attorneys don’t simply fill in forms. Rather, we use the knowledge we have acquired during our many years of schooling and practice to advise you on the best way to protect your family, and preserve and distribute your assets in the manner you choose.
- Examples of the shortcomings of DIY Wills and trusts are:
- Failure to include an alternate trustee in the event the named trustee predeceases him or is unable or unwilling to serve.
- Failure to include a self-proving affidavit. This would make it necessary to track down witnesses after death in order to probate the Will.
- Failure to provide guidance about beneficiary designations on non-probate assets which pass outside the Will.
- Failure to address the contingency of children predeceasing him, or the birth or adoption of a third child.
- Potentially disinherited a child by leaving the entire estate to his second wife who is not the mother of the child.
- Appointment of agent to control disposition of remains in addition to your Will may be necessary.
- A New York estates attorney can advise you when you should update your Will.
- Holographic (handwritten Wills) and handwritten changes to original Wills are ineffective in New York .
- You need a New York estates attorney to explain to you how to disinherit your spouse and children.
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