While Americans generally agree that it’s important to have an estate plan in place before turning 50, only 55% of those over 55 have a will, according to a 2019 survey by Merrill Lynch and Age Wave.
One common uncertainty people face when they set out to create a will is whether they need to consult a lawyer. With some diligent research, you can write a last will and testament completely on your own, and there are free online will makers like the one offered by Fabric that start you off with the same standard templates attorneys use to build customized wills for their clients.
If you have a really simple financial situation—for example, you have few assets, don’t have children and are planning on leaving everything to one sibling—you may be OK creating a will on your own. But the lawyers we spoke to said that there are many reasons to consult a lawyer, too.
Note that Fabric isn’t an attorney and doesn’t provide legal advice. That’s why we consulted attorneys to learn more about when it might make the most sense to seek legal counsel in writing your will, and when you may be able to go it alone.
“The greatest value a lawyer provides her clients is professional legal counseling and advice to enable her client to make well-informed choices so that the end product—the legal documents— reflect that individual client's wishes, address her concerns and will work the way she intends them to when the time comes,” says Danielle G. Van Ess, a wills, trusts, and estates lawyer in Massachusetts who has advised hundreds of families on estate planning.
She says, “I have administered wills and trusts that I did not prepare and experienced the frustration of discovering that they were not well-drafted, or that there are unnecessary complexities that will cost more time and money to resolve.”
Ryan M. Holmes, an estate planning partner at Clark Hill in Chicago who has been practicing in this area of law for two decades, says, “I think a seasoned practitioner can always bring value to the table.”
At the same time, engaging a lawyer’s services to draft a will can cost $1,000 or more. If that’s out of your budget, and there’s nothing particularly out-of-the-ordinary about your situation, remember that a DIY or online will is better than no will at all.
Here are four situations where it might be your best bet to engage a lawyer’s service when drafting your will—as well as signs you might be able to draft it on your own.
Drafting a will isn’t a set-it-and-forget-it item on your to-do list, Holmes says. The estate-planning process really is a process of tweaking things over time. “One of the good things about using a lawyer is that we’ll reach out every few years and say, ‘Hey, what’s changed in your life? We should look at your documents and update them,’” he says.
Of course, if you want to DIY it, you can set a calendar reminder to review your documents once a year. Not whether your situation has changed significantly (for example, if you’ve gotten married or divorced, or had more children). If you’re not realistically the type of person who’ll remember to check-in every so often, a lawyer could add value here.
“You can say, ‘I’m going to leave everything in equal shares to my kids,’” Holmes says, but if they’re still minors when both parents die, you’ve created three guardianship estates that will last until your children are 18.
In some cases, that may not be the end of the world—but a seasoned lawyer will probably ask you additional questions. For example, do any of your kids have special issues that might require more money than the others? Are your kids financially savvy enough to manage the money without extra prescriptions on your part? At what age should they have access to the money?
From there, the attorney can help you set up a trust to dictate not just who should inherit your estate, but how they should receive it. Of course, inheriting money and property at 18 can have serious implications, so a trust is something that every parent should carefully consider.
Creating a trust fund is often a good idea, but you might decide that you’re OK with your kids inheriting your estate when they hit age 18. In that case, you might choose to forgo an attorney and create your own will online. If you go this route, it may give you peace of mind to appoint a legal guardian who is financially savvy and whom you and your children trust deeply.
That person can (at least in theory) guide your children as they come into control over the money, too. The legal guardian would take over the care of your child if both you and the child’s other parent were to pass away.
If, after evaluating all of the above, you still feel uneasy, it may be your best bet to contact a lawyer about this aspect of your estate planning.
People with especially large estates have unique needs when it comes to estate planning. The Tax Cuts and Jobs Act of 2017, for example, basically doubled the federal estate tax exemption, meaning that estate-planning documents drafted a long time ago might not work efficiently anymore, Holmes says. Lawyers should keep up with the latest legislation and make sure you’re informed.
However, the federal estate tax, gift tax and generation-skipping transfer tax exemptions—the three that most commonly affect estate planning—hovered at $11.58 million for a single person and $22.8 million for a married couple in 2019, meaning that they’re only really a concern for high-net-worth folks. (The annual gift tax exclusion was $15,000 in 2020, meaning that’s the max you can give per year, but the lifetime exclusion was up at $11.58 million.)
Van Ess notes that anyone whose total gross estate at time of death may exceed $1 million, the threshold for Massachusetts’ estate tax, should consult a lawyer, as well. Twelve states levy an estate or inheritance tax in addition to the federal tax. Check to see if your state is one of them.
If you are a single parent, or if you have complex instructions for your estate after you’re gone, an attorney can help you craft a document that reflects your wishes fully.
You might also consult an attorney, Van Ess says, if you want to make sure your heirs have plenty of guidance so they aren’t left trying to figure everything out on their own while they’re grieving.
If you suspect there could be controversy among your heirs after you’re gone, you’ll probably be better off consulting with a lawyer. This could help ensure that your will is airtight in case of a dispute, in addition to accounting for any unusual requests you might have to minimize conflict later. (For example, if you decided to appoint your cousin as your child’s guardian instead of your sister and you think they might fight over this—a lawyer might be able to advise on additional documentation such as a letter from you explaining your choices.)
Of course, if your wishes are simple and straightforward—for example, you just want everything to pass to your spouse upon your death—and you don’t foresee any particular issues, you might choose to go it alone, if you feel comfortable doing so.
If the idea of working with an attorney to draft your will gives you peace of mind, that’s reason enough in and of itself.
Perhaps most importantly, however, it’s key not to let perfect become the enemy of good. You can always update your will down the road. If you pass away without any will at all, then the courts will step in to decide how your property should be distributed . . . and who should take care of your children if both of you and their other parent or legal guardian were to pass away.
If time and money is a barrier that makes you put off creating a will through an attorney, you can always create your own will online as a stopgap, and then visit an attorney to perfect your estate plan.
And of course, if you have questions about your own individual situation, speaking to a lawyer never hurts.
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Fabric by Gerber Life exists to help young families master their money. Our articles abide by strict editorial standards.
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