DIY Wills — Just DDI (Don’t Do It)

We have written about the pitfalls of DIY (Do-It-Yourself) estate planning before. Several times. Nothing has changed in the law or practice to make our earlier advice less important — or easier to overlook. It’s just that we keep seeing DIY estate planning projects that turn out badly. It’s why we say: just don’t try to prepare and execute DIY wills. It won’t work out well.

A recent example

This month we saw an example of a DIY will that crystallized much of what we warn against. The author of the will was intelligent, well-connected and even had a lawyer that she used regularly. And yet she decided to save a couple dollars (and some time) by writing her own will. She left her heirs (yes, her heirs) a much more expensive outcome and potentially months of delay.

Why do we single out “heirs”? Because a well-crafted will won’t leave any heirs. Instead, it will dispose of all the author’s property to “devisees” — the people named in the will. This will did leave at least two devisees (ambiguous wording leaves questions about a third), but then never did dispose of the residue of her estate. Or maybe it did — more ambiguity there.

Naming a personal representative (what we used to call an executor) is one item often overlooked in DIY wills. Not in this case. The will does name a personal representative. Two, in fact. And it uses the term “or”. Does that mean one or the other of the two named individuals should act as personal representative? Or that both can serve and they can act independently of one another? Unfortunately, the will gives no guidance.

And another thing: the will doesn’t waive bond for the personal representative(s). That will add a few hundred dollars (maybe as much as a couple thousand) to the cost of probating her estate. And since she named some of her heirs as personal representative, it seems unlikely that a bond would make sense. The omission could have paid for the full cost of professional will preparation.

Using software to help

We have occasionally suggested that software might help improve the quality of DIY wills. We’re about to change that observation.

In the will that triggers this review, the author clearly used online software. The will has extensive provisions, for example, about “digital assets.” This is clearly a topic that the will’s author didn’t think up on her own. In fact, she owned no digital assets, and never had. She apparently thought her regular bank checking account might qualify, judging from the language. But it doesn’t.

So what is a digital asset? Cryptocurrency (she never owned any and didn’t believe in it) comes to mind. Or online business “assets” like websites and proprietary information. She just didn’t need to provide for digital assets — and the form she used didn’t change anything from what the rest of her will would have done.

The DIY wills software also offered up the final dispositive provision — the residuary clause. It obviously asked “who do you want to receive the rest and residue of your estate?” But the will’s author instead typed in a specific devise. So now the will says, more-or-less: “I leave the rest of my estate as follows: $10,000 to my friend Dave.” Nothing more. And the software didn’t notice that the will’s author had earlier left another dollar amount to another person, so they obviously understood the meaning of a specific devise — even if they didn’t know that term.

So what does the failure to list remainder beneficiaries mean? It’s not like the State gets more money, or the cost of filing a probate goes up. But now the personal representative will need to connect with, account to and consider the interests of all the people who would have received everything if there had been no will at all. Perhaps that’s what the will’s author intended, but we’ll never be sure.

Signing DIY wills

Signing a will remains a rigidly formulaic process. You can buy groceries, a car — even a house — by scribbling your signature on a tiny screen. You can even type your name on your cell phone or tablet as a signature for many purposes. But not your will.

OK — that’s not quite correct. You CAN, in fact, sign a will digitally. But not in every state. And not easily.

Arizona does permit digital wills (that means a will signed electronically). But the process is so much more complicated than “wet” signatures that Arizona’s law has never been used. Or we don’t think it has been used, anyway — there might be someone who signed a digital will just to prove a point.

As an aside, if a client brought us a properly-executed digital will, we’d be impressed. And we’d immediately offer to retype it and have them re-execute it with an ink signature. Because no one should want to be the first person to have their estate depend on proper digital will execution.

But back to our point: in the case we are describing here, there was no attempt to sign the will digitally. And the will’s author didn’t follow the signature process described in the will preparation software.

The author’s signature is fine. And there are two witnesses. But the witnesses didn’t fill in the “date” field on their signatures, and the entire thing was un-notarized. That means that we’ll probably need to track down one or both of the witnesses and get them to sign an affidavit about the signature process. More delay, and more cost.

So can you just make sure you don’t make those mistakes?

Yes, you could read this post as guidelines for how to properly complete DIY wills. Or you could just see the larger point: the number of petty mistakes available in preparing DIY wills is impressively large, and based on sometimes silly but nonetheless important rules. We really, really wish you would just meet with a lawyer and get it done correctly. Your devisees — and maybe your heirs — will thank you.

Oh, and could you prepare DIY wills and have a lawyer review them? Absolutely. But remember: it’s not just about the documents. It’s also about accomplishing your wishes. And we will ask the same questions and have the same evaluation process to review your DIY wills as we would to just prepare wills for you. More, in fact — we know the arrangement and language of our own wills, but will have to carefully read your DIY product and decide whether there are hidden problems.

How about if I just handwrite my will?

Argghhh! You’re not getting this, are you? The number and variety of mistakes you can commit in a handwritten will dwarf the problems with the DIY wills we see on a regular basis. And if you happen to die in a state where handwritten (or “holographic”) wills are not recognized, then you may have accomplished exactly nothing.

Just talk with a lawyer. Not a CPA, by the way. And not a financial planner. They might both call themselves “estate planners,” but in this context we lawyers are the correct resource for preparing your will. The cost will likely be small compared to the savings over relying on bad documents. And we also sell peace of mind. Plus we’re nice people, and fun to talk with. Please don’ try to DIY.