The ultimate do-it-yourself Will.

Many of the articles on this blog are an attempt to de-mystify the process of writing your Will. We’ve explained that there are certain statements that should appear, but then as long as the document is signed and witnessed, it is a legal document. In many circumstances it is unnecessary to pay for expensive legal advice when your intentions are clear and straightforward, yet most people in that situation don’t even prepare a Will because they know it will cost them hundreds if not thousands of dollars to do so. The legal community scare people into not preparing their own Will by over complicating the whole process.

It was therefore very gratifying to see this article published today about a woman who wrote her Will in 1996 (not 1896!), but she was too ill to find a piece of paper so wrote everything on a piece of furniture that was close to hand http://bit.ly/dA279J . It was all in her own handwriting (and so according to many State and Provincial law doesn’t even have to be witnessed. A Will written all in your own handwriting is known as a holographic Will and legal in most States and Provinces). And guess what? the Will is perfectly legal and all of her estate was distributed according to her wishes.

It really doesn’t have to be as complicated as many people would have you believe.

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Who Will Be the Guardian of Your Children?

There is a lot to organize when you have a new baby; the sleeping patterns, the feeding, the crying and the soothing. However, amidst all of this, there is paperwork to complete and file. Usually, new parents are given help with the basics such as registering the birth, and applying for a Social Insurance Number or health card. But one of the most important documents that needs to be written and is often overlooked is a new Last Will and Testament for the parents. Most people think of a Last Will and Testament as a document for describing the distribution of their possessions after they have passed away, and this is indeed one of the most important elements of this very important piece of paper. But for new parents, often the most challenging clause is the one that names the guardian of their children.

What happens if you do not have a Will?

If something were to happen to you as a parent, the other parent will in almost all cases be given the parental responsibilities for your child or children. But if something were to happen to the two of you, then things can become very complicated. It is not likely to happen, but it just might.  Imagine for a moment that your child is with a caregiver and you and your spouse are running some errands. There is always a possibility that something could happen to you at that moment and, although the thought is horrific, it is best to prepare and give some thought to who would be the best person to take over guardianship of your child.
Without a Will, friends and family members will apply to the family courts and a judge ultimately decides who will be the most appropriate guardian for your children. They will not personally know any of the applicants and will only be able to consider things like age, financial means, type of relationship, or geographic location. They will not be able to consider less tangible aspects such as values, personality, and general priorities in life. The battle in the family courts can be an ugly one, but ultimately, you will have absolutely no say in the matter if you do not have a valid Last Will and Testament.

What happens if you have a Will?

If you have a Will there will be a clause naming your choice for the guardian of your children and in some cases you can describe why you have chosen this person. Your choice may be a difficult one. Do you want your child to have to move to a different geographic location, to a different town or different country? Do you want your child to live with family members, or with the best qualified friend? What makes one person more qualified than another; their financial means or their values? What about a prospective guardian’s religious or spiritual beliefs? Is it more appropriate to ask somebody who already has children or somebody without children?
It can be a very difficult decision, especially as the role of guardian is likely to last until the child becomes an adult; 18 or 19 years old depending on where you live.
But if you have included your preference in your Will, then this can be submitted to the family courts and will be a crucial piece of information for the judge to ponder when the guardianship is granted. Of course, remember that you should also discuss guardianship with the individual or family that you have named before finalizing your Will. It should not come as a shock to them and you must know that they are willing to take on the role. Just by including your preference in your Will, they are not legally bound to accept the responsibility.

But isn’t it a pain to write my Will?

It can be, but it does not have to be. Basically, you have three options:
You can see a lawyer, who will be able to give you professional legal advice. This will cost anything from about $200 to well over $1,000, but it does mean booking an appointment and heading to a lawyer’s office. You are likely to receive top quality service, but it can be inconvenient and expensive to update and maintain your Will if you change your mind about something. If you have a young baby, it may be a lot to ask to organize and make a trip to a law office.
At the other end of the spectrum are the blank Will kit forms that you can buy in stationery stores. These are the cheapest, but have been largely criticized by many observers as they are simply a blank form and you are supposed to figure out how to complete the Will yourself. Although you are legally allowed to do this, writing your own Will is generally a bad idea. You may have Minor Trusts to set up, alternate plans, residual beneficiaries, and other items that are obvious to a legal professional but not to a layperson. The biggest issue is that you will never know that you have made a mistake; it will have to be dealt with by your survivors. A mistake in the signing procedure, for example, can invalidate every aspect of the Will, and you will be none the wiser.

A middle ground worth considering is an online tool, somewhat analogous to tax preparation software. Such tools guide you through the process of creating your Will by asking you a series of questions about your family situation and your wishes for distributing your assets. They will also check that you have included things like guardians for your children. The added advantage of these systems is that you can complete your Will at home, at your convenience, and then update your document at any time in the future when your circumstances change. Each time a change is made, you simply print off the new version and sign it in the presence of two witnesses to create your new legal Last Will and Testament customized for your location and personalized to your situation. At a fraction of the cost of hiring a lawyer, you can have your Will in your hands in 30 minutes or less and this will include the critical step of naming a guardian for your children.

Writing your Will, you get what you pay for.

There are many ways in which you can prepare your Last Will and Testament; at the top end you can go to a lawyer’s office, sit with them for an hour, receive top quality legal advice and pay who knows what. We’ve heard reports of anything from $500 to $5,000.

At the other end of the spectrum you can write your own Will, starting with a blank piece of paper, and including instructions for how you would like your possessions to be distributed. If you start this document with a statement saying that it’s your Last Will and Testament, and finish it with your signature, you have a legal Last Will and Testament (in some jurisdictions, if it is written all in your own handwriting, it doesn’t even need to be witnessed to be legal). Total cost – zero.

Two legal Wills, one for $5k, one for zero dollars, and dozens of approaches in between. How do you find the approach that’s best for you?

Let us start with the blank piece of paper. In almost all cases, this is a bad idea simply because there is a chance that you won’t be clear about something. You do need to name somebody to take administer your estate; the Executor, and you have to include a plan in case your main instructions cannot be followed e.g. one of your beneficiaries pre-deceases you or dies in the same accident. If you have anything but the truly simplest case, you have other factors to include like trusts for minors, guardians for minors, and what powers does the Executor really have in taking care of your Will. As soon as you start looking beyond the most basic instructions, the Will can become a far more complex document.

But, you will frequently see advertised “free Will forms” or available at a very low price. What exactly are these forms? They are blank documents with a few placeholders; I (insert name) of (insert address) declare this to be my last Will…” A teenager could create one of these right now, in MS Word, put it online, sell it for a few pennies and call it a Last Will and Testament template. But it would be extremely dangerous to use it. We actually bought a number of these just to look at them and it made us shudder.

This really is it…yes, the second page is the kit. It’s a blank sheet and in it, you’re supposed to include all of your instructions.

It is almost impossible to complete this blank form without making some kind of mistake, but there were probably thousands of these sold. I think this is what the legal community are referring to when they talk about having to sort out estates created with DIY forms which are unclear and have led to family fights.

There are many things that must be included in a Last Will and Testament which will not be included in one of these blank sheets of paper.

So let’s turn our attention to the other end; the $5,000 Last Will and Testament.

There are many very sophisticated estate planning tools including tax oriented trusts or special purpose trusts. Many of these are specific to certain jurisdictions and can be extremely useful if you have a large estate and wish to reduce probate fees or inheritance tax, or if you have a particular family situation for example, a Henson Trust in Canada allows you to provide for a child with special needs. It is possible to see that in some complex scenarios, legal fees can mount up when putting together an estate plan.

However, what if you don’t need sophisticated legal advice and your situation is thought to be straightforward. Supposing you want everything to go to your spouse, and if something happened to the two of you, it should be divided between your children. Supposing you know who your Executor should be, and you know who you would want to serve as guardians for your children. Then there’s a good chance that you don’t need to pay thousands or even hundreds of dollars for legal advice.

There are services developed by estate planning lawyers that are available because the vast majority of people don’t have a legal Will. Online Will creation services are analogous to using tax software to file your taxes. These services are not free, because they have been developed by lawyers and designed by software engineers.  There is also usually a support infrastructure to help people complete the services. However, these services are cost effective and they can produce documents that can look exactly the same as a Will prepared by a lawyer.

Our advice is to stay well clear of blank forms or free Last Will and Testament kits. Just like there are some things that you probably shouldn’t buy in a dollar store, a cheap or free Last Will and Testament is not a good idea. But think carefully before paying for legal advice that you may not need. It could be that an online interactive tool is a suitable middle ground for your circumstance.

Writing a Will is not brain surgery

I get so tired of lawyers advising people not to prepare their own Will on the basis of a flimsy analogy. Every time I see the arguments against writing your own Will, I see a lawyer saying something like “preparing your own Will is like performing your own brain surgery.”  The Forbes article from last week had a lawyer comparing writing your own Will to “”pulling your own tooth with a pair of pliers instead of going to the dentist.” Just yesterday I was reading a blog written by a lawyer saying that the reason lawyers charge so much for preparing a Will is the same reason that laser eye surgery is so expensive for just a 15 minute procedure. (for some reason, they love the medical analogies)

Let’s get real. Writing your own Will is you, expressing how you would like your possessions to be distributed after you die. It may also include naming the person that you wish to look after your children if both you and the other parent were to both die at the same time. If you sign this document in the presence of two witnesses who then both sign, you have created a legal Last Will and Testament. It is not brain surgery, it is not laser eye correction surgery, it is simply an expression of your wishes for your estate.

Things can of course get complicated if you have more difficult things to take care of. If you need to set up a trust for a child with special needs, if you have many business interests, or property held in different countries, maybe if you have young children from multiple marriages – in these cases you may need legal advice, and that advice is worth paying for. But many people do not require legal advice to prepare their own Will, because writing a Will is not necessarily a difficult task.

Bear in mind that most interactive online services are prepared by lawyers who are very experienced in estate planning. Every one of the templates generated by our services in Canada, the US and the UK were created by estate planning lawyers, and we even have a service that lets you have your Will reviewed by a lawyer once it is completed. Some lawyers understand that just as many people want to file their own taxes instead of using a accountant, many people want to prepare their own Will without using a lawyer.

Lawyers make it sound like if you prepare your own Will, it will be challenged by your family so you should have a lawyer prepare it for you. It’s strange though because every time I read a new story about a Will being challenged, the Will was prepared by a lawyer.

So enough with the scaremongering analogies. Preparing your own Will isn’t like performing your own brain surgery, walking on the moon or splitting the atom. It’s simply writing down what you want to happen to your things after you’ve died, in a clear and unambiguous way. So don’t be afraid of it.

If you write a Will, you will die.

Yes it’s true, you will die, at some point in the future. The astonishing thing is, some people think that writing a Last Will and Testament is actually tempting fate; the act of writing a Will would cause them to die! Of course we all know this is ridiculous, but shortly after we launched the LegalWills.co.uk service I was interviewed by BBC Radio and the host actually announced that she didn’t have a Will because it would make her feel uneasy about her own mortality! My reply was that yes, many people would ideally like to write their Will just before they die, but a very, very small percentage of us will ever have that opportunity.

I read a blog just yesterday where the author asked his followers if they had written their Last Will and Testament, and here’s a sample of some of the answers.

“My doc also gave me 20 years, so I’m procrastinating”

“Not me. Nobody wants my crap!!”

“Yes I have a living will…”

“I have. I did that, in the 1970s.”

In fact, just about every response to the blog is either mis-informed, or just plain irresponsible.

We talked in our first blog posting about some of the reasons people don`t put a Will in place and why they are all bad excuses http://bit.ly/9DW0mT including the “I don t have anything, so it s not worth writing a Will” excuse (the fact is, you have no idea what you will be worth when you die, even if it happens tomorrow, for example, your estate could be worth millions if you die as a result of a negligent accident). So let us talk about when it is a good idea to write your Will.

Writing a Will is not a macabre exercise; your Will is not an expression of death, it`s simply a financial planning tool. The Wills at LegalWills do not even include funeral wishes and a description of the disposition of the body for reasons that we will explain in a future post. No, it is a simple expression of who you would like to receive each of your things. In fact, it can be as simple as saying “I want everything that I own to go to my wife, if we both die at the same time, I want it to be divided between my children”. Of course, there may be other things to decide, but it is not a grisly task, and you will probably not be hit by a bus or struck by lightning as soon as you have written one.

Every adult needs a Will and you must be over the age of majority to write one (either 18 or 19 depending on where you are). So if you don`t have one already, you need one. And as we said last week, there are a number of good reasons why you may need a new Will even if you already have one in place http://bit.ly/boOXIe

It is true that many of our customers are writing a Will because they are going in for surgery, or embarking on an exotic trip. But none of us intend to die this week and the third leading cause of death after heart disease and cancer is in fact, an accident (it s the number one cause of death for people under the age of 45).

So this evening is probably a good time to write your Will and with the convenience of interactive online services available today, there is less justification to put it off for another day.

I have. I did that, in the 1970s.

When to update your Last Will and Testament.

I suppose we should be thanking Forbes magazine for giving us so much material for our newly launched blog; their article earlier in the week presenting a flimsy case against writing your own Will has triggered at least a half a dozen full blog articles on why it really is a good idea to prepare your own Will.

Today we’ll focus on another one of the comments towards the end of the article http://bit.ly/bywL2y

“It cost my husband and me $4,500 for a package of basic estate-planning documents–his-and-her wills, powers of attorney, living wills and life insurance trusts–prepared in 1997 after our son was born. By today’s standards, we got ripped off.”

The concern we had with this comment is that the author had not updated her Will for 14 years and this is typical for people paying thousands of dollars. We also received this email from a new customer of LegalWills;

“Hello, I have discovered your website while looking for information on behalf of my mother.  She needs to update and change her will, but logistics as well as cost make it difficult for her to do so in the way she did previously, on her own.  This was through a local notary public, and the cost was exorbitant, especially as she did not realize she was being charged $150 per item to add items to the will.  She cannot afford that now…At 82, she has waited nearly a decade to change things, simply because of those fees.  Unfortunately, I wasn’t around to help her until now.”

This creates a very serious problem; we all know that at least 60% of adults do not have a Will in place, but of those who do, most are not updated on a regular basis. It is a very dangerous misconception to think that once you have a Will in place, it will serve you for the rest of your life. When I tell people that I am associated with the LegalWills websites it is frightening how often I hear statements like “Oh, I have my Will written already, mind you, it was prepared before Billy and Lucy were born”. In other words, the Will is obsolete because it doesn’t include critical information about minor trusts and guardians for the children. In fact, the whole distribution of property section is almost useless if it doesn’t include the minor children as alternate beneficiaries.

We feel that at a minimum the Will has to be updated when you get married, divorced, or have children. It certainly should also be updated if one of your beneficiaries pre-deceases you or your first choice plan cannot be followed. But you should also update your Will if there is a change to your business life, your financial situation, your Executor’s situation, the value of your assets, or if you move your place of residence. And being that you probably won’t remember to go back to your Will in each of these circumstances, you should just review your Will on a regular basis, at least annually, to make sure that it still reflects your wishes. You have a right to update your Will even for something as simple as falling out with one of your beneficiaries or your Executor.

The concern for those who have a Will prepared by a lawyer for thousands of dollars, is how long will the document be good for? If you are extremely lucky, it may last you 14 years, but it could last less than a day if any of these life events happen to you as you walk out of the lawyers office. Realistically, your Will is going to be a useful expression of your wishes for several months, maybe a couple of years.

The next question is how do you update your Will? The first, extremely ill advised way, is to write on the Will. Don’t do it, even if the change is trivial; it will be impossible to know who made the update and when, and it is an invitation to challenge the Will.

The second is by preparing a codicil which is a piece of paper listing the amendments that is then attached to the Will. At LegalWills.ca, USLegalWills.com and LegalWills.co.uk we believe that a codicil is an anachronistic tool from a bygone age. They were used because people had the reasonable but unrealistic expectation that a lawyer would charge less to prepare a codicil than they would to create a Will. It turns out that this is rarely the case; the process for creating a codicil is almost exactly the same as creating a Will and both documents need to be signed and witnessed in exactly the same way.

With today’s technology, and certainly if you use an online interactive service, you should just create a brand new Will. You can usually just log into your account, make the change that you need, print a new version, sign it in the presence of witnesses and then destroy your old Will. You will then have an up-to-date legal Last Will and Testament.

Just as you may have made it a New Year’s Resolution to create your Last Will and Testament in the first place, make it a resolution to review it on an annual basis and make any changes that you need. Create a new Will each time and destroy the old version.

Do you actually understand your Last Will and Testament?

Following on from yesterday’s blog posting that discussed how simple a Last Will and Testament can be, I thought it would be interesting to talk about the language that appears in your final document.

Lawyers will often discourage you from creating your own Will, even if you use interactive software, or a website like legalwills.ca or uslegalwills.com. The most often cited reason is that you could make a mistake. But this argument overlooks a very important benefit of creating one’s own Will – you will actually understand what is written.

Most services step you through your family situation, they will ask if you are married, have children and then ask you to name an Executor. You will also name guardians for any minor children, and then describe how you would want your possessions to be distributed. There is usually help along the way so you can click to see explanations on important questions like “how to choose an appropriate guardian for your children”. After working through this service for an hour you are actually better informed about some of the key issues and understand exactly how your estate will be distributed.

Contrast this with going into a lawyer’s office. I offer up the sample once again collected from my local lawyer’s office for the “standard will”

This lawyer asks for your name, name of spouse and address. They then ask a total of 6 questions;

  • Executor,
  • Alternate Executor,
  • Main Beneficiary,
  • Alternate Beneficiary,
  • Further Alternate Beneficiaries,
  • Guardians if children under 18

The help is offered in parentheses under some of the questions; for example under Executor it says (the person who administers the Will). Under main beneficiary it says (the person who is the recipient of the monies and claims in the Will. Everything to spouse?).

Once you’ve completed this form, you pay $450 and walk out with a Will. Now, we would argue that creating your own Will actually puts you in control of the process. You have the opportunity to read frequently asked questions in each section and then read your Will at the end to make sure it reflects what you really want to happen. We have questions all the time from people who aren’t really sure that the distribution of property is described exactly as they intended, but they then have the opportunity to go back into the service and make the necessary amendments.

Lawyers often argue that people do not have the skills, experience or even intelligence to prepare their own Will, but we would argue that if that were the case, then people are walking out of lawyers offices with pieces of paper that are incomprehensible to them. The document will be filled with pages of clauses like

“My Trustee is authorized to fix the remuneration to be paid…and such remuneration is to be charged upon my estate and payable out of the capital and/or income thereof in such proportions as my Trustee from time to time decides. In making any such arrangement as aforesaid, my Trustee may place the investments comprising my estate, or any of them, in the custody of such person or corporation and may transfer such investments, or any of them, into the name of such person or corporation, or any nominee thereof. Without limitation, my Trustee may delegate my Trustee’s investment authority to investment counsel provided my Trustee sets investment guidelines; and my Trustee may delegate his or her investment authority in the course of or as a result of the investment in, or the purchase or holding of, shares or units of mutual fund corporations or trusts or shares or units of pooled funds.”

An important clause, but how many lawyers are taking the time to work through these clauses with the client?

We consider the process of stepping through an interactive service and understanding what steps went into the production of the Last Will and Testament as important as the final document itself. Our customers read their final documents, and ask questions about it, and then make changes based on answers to these questions and at the end of the process they know that they have in their hands a document that is a true expression of their wishes.

Ultimately, you should understand your Last Will and Testament, every line and every clause. The document should express exactly how you would like you estate to be distributed, and should  not include any language that you do not understand.