It might. IF you follow the rules exactly.
It has been in the news both here and in the United Kingdom that more Americans are becoming aware of their need for estate plans due to the Coronavirus. Express Digest, ABC News, The Daily Mail, and others have quoted the CNBC report:
“Online will company Gentreo told CNBC they have seen a 143% week on week increase in business; Trust & Will has seen a 50% rise. Around 40% of Americans are thought to currently have wills place. Attorney Alain Roman, who assists with estate planning said, “Seeing in the news that so many people are passing away worldwide and here in the U.S., people are getting a little scared. It’s getting them thinking about having a plan in place in case something happens to them.”
But legal experts have a warning for those signing wills online: be wary of their legality. Leslie Tayne, founder of Tayne Law Group, said the digital document will only be valid if it “meets all of the legal requirements of your state.” Tayne added that “since the vast majority of DIY wills are created and executed without any oversight from an attorney, a larger number of wills (may not be) executed in compliance with the proper will formalities, and that could end up making the will invalid.”
What Can Go Wrong With An Online Will?
A variety of problems can rear their ugly heads when a Will is not correctly made or legally executed. Here are a few:
SIGNING CONFERENCE GAFFES: If an Oklahoma Will is made from an online / downloaded / typed form, it still has to be physically (not virtually) signed by its maker (the Testator), witnessed by two people, and notarized. In Oklahoma, the notary cannot be done online. The signing must be done with all four parties in the same place, able to see the testator and the witnesses signing the documents. Only then can the notary attest to having seen that happen and that these are the people they say they are.
OWNERSHIP CONFLICTS: A Will that is not drawn up correctly can include things that are overruled by other legal documents. Life insurance proceeds, bank and investment accounts, retirement funds, joint property, and such may be controlled by other assignments. Even if you write them into your Will, they go to whomever those other designations say, rather than to whom the Will says.
NONCOMPLIANCE: A Will that does not comply with state law governing what makes it legal (content, competence, signatures, witnesses, notary) is likely to be declared invalid in court. The early parts of probate include filing the Will and having the judge determine it is valid. Until that happens, nothing else can.
DISINHERITANCES: You can’t disinherit someone just by leaving him or her out of your Will. Certain people cannot be disinherited, except under strict guidelines. You cannot disinherit a spouse without a prenup that specifies that. Married people promised things in a prenuptial contract (“prenup”) cannot be dispossessed of those things by a Will. Very specific language is required to disinherit someone.
A “ONE SIZE FITS ALL” WILL: Lots of people want to get this done in a hurry. It’s understandable why they might want to use a fill-in-the-blank form. However, every state has its own laws about Wills, Probate, and Inheritance. There is no federal law governing Wills. So, there is no actual “one size fits all” form for Wills. If you use one, the judge may declare it invalid.
A HANDWRITTEN (HOLOGRAPHIC) WILL: Each state also has laws regarding the content, form, and execution of handwritten Wills. In Oklahoma it must be all in your own hand and you don’t have to have witnesses or a notary. Any little misstep in drawing up your holographic Will requires the judge to declare it invalid.
LITIGATION (LAWSUITS): Disputes can arise about your competence, multiple Will versions, property ownership, other designations, promises you made, heirs/beneficiaries, the form’s validity, and more. These can drag the probate process on — even for years. Taking it to court costs lots of money. People can spend their entire inheritances fighting these things in court.
What Can Be Done To Prevent Problems With “Do It Yourself” Wills?
You could take the risk that the forms you use and your signing conference comply with the laws in your state and do not fly in the face of other legal documents assigning or titling things to beneficiaries.
You could take the risk that none of your beneficiaries would fight the Will. Maybe they happily agree with what your Will says, how it was drawn up, that all heirs are legitimate, and you were in your right mind when it was signed, witnessed and notarized – or handwritten. Maybe, as in your dreams, they happily do as you instructed in the Will. Or maybe all that is just not possible. Regardless, the agreement of others does not legitimize an otherwise invalid Will.
You could study the laws (inheritance, property, Wills, probate, finance, et al.) to be sure the forms you use, the content, and your signing conference do not contradict other documents and do comply with your state’s statutes.
You could do all of that. Still, the best thing you can do for yourself and your beneficiaries is to engage a lawyer, skilled and experienced with the estate planning laws of your state.
If you use an online form or write your Will in your own hand, an experienced estate planning attorney’s review of your documents and process of legalizing them can assure that your Will is likely to hold up in court. It may seem like an extra step with extra costs. However, if you want your Will to work as you intend, a short phone or online conference with your estate planning lawyer can make sure it does. Then, when your personal representative (executor) takes your Will to probate court — which he/she must — the judge is going to uphold it as a valid Will and your stuff is likeliest to go to whom and where you chose.
P.S. A Will may not be the smartest tool for your situation. A good estate planning lawyer will always tell you if a Will is right for you or if other tools are better for accomplishing your goals.
Originally published May 1, 2020 in LinkedIn Pulse