Would You Fix a Gas Leak Yourself?

Five Common Mistakes with “DIY” Estate Plans

This current pandemic has so many of us becoming DIYers.* I never knew just how long Sherryl’s “honey-do” list actually was--I really think it is perpetual! She keeps saying, “now that we are home, we can do this and that instead of paying someone else to do it.” I have become the ultimate DIYer (“do it yourself”)! That said, I draw the line at gas--I will not touch anything that can cause permanent damage to my family, me, and the neighborhood.

The pandemic is constantly showing us permanent damage and loss. It is a reminder that tomorrow is not promised. And, whether we like it or not, some of our minds drift toward the importance of creating or updating our estate planning documents. As a result, these extended stay-in-place orders could inspire another DIY idea: to create your own estate planning documents. IGNORE THE TEMPTATION!

Whether you are considering writing your own will or using an online DIY document creator, PLEASE DO NOT. There are so many other things for you to do and so many reasons why this is one project you should not undertake without the help of a professional. DIY estate planning is like working on a gas line, if something goes wrong, there are no “do-overs” and the impact of your mistake can affect you and your loved ones.

What is a DIY estate plan?

A DIY estate plan is something you “do yourself” without the advice of an estate planning attorney. Someone who DIYs their own legal documents could be:

• Handwriting a “will” themselves;

• Downloading a “fill in the blank” document that they got on the internet; or

• Using an online document generator that asks pre-set questions.

Five Common DIY Estate Plan Mistakes

Below are five common mistakes associated with DIY estate plans.

1. DIY estate plans may not conform to the applicable law - Forms found on the internet may claim to conform to your state’s law (some of these sites do not even include the District of Columbia), but this may not always be the case. The laws that apply to estate planning are determined by each jurisdiction—and there can be wide variations in the law from state to state. In addition, if you own property in another state or country, the laws in those jurisdictions may differ significantly, and your DIY estate plan may not adequately account for them.

2. A DIY estate plan could contain inaccurate, incomplete, or contradictory information - If you attempt to create a will using an online questionnaire, it is very possible for you to select the wrong option or leave out important information that could prevent your will from accomplishing your goals. Potential problems could be made even worse when do-it-yourself services allow users to insert additional information not addressed by the service’s preset questionnaire: the information added by a DIYer could contradict other parts of the automated will.

3. Your DIY estate plan may not account for changing life circumstances - For example, if you create a will in which you leave everything to your two children, what happens if one of those children dies before you? Will that child’s share go entirely to his or her sibling—or will it go to the child’s offspring? What if one of your children accumulates a lot of debt? Is it okay with you if the money or property the indebted child inherits is vulnerable to claims of the child’s creditors? What if your will states your daughter will receive the family home as her only inheritance, but it is sold shortly before you die? Will she inherit nothing? As opposed to a computer program, an experienced estate planning attorney will help you think through the potential changes and contingencies that could have an impact on your estate plan--and help you design a plan that prevents unintended results that could frustrate your estate planning goals.

4. Mistakes in executing the plan can be easily made - Under the law, there are certain requirements that must be met for wills and other estate planning documents to be legally valid. For example, a will typically requires the signatures of two witnesses, but state law differs regarding what is necessary for a will to be validly witnessed. Some states require not only that the will be signed by the will-maker and the witnesses, but also that they all sign the will in each other’s presence. In other states, witnesses are not required to be in the same room when the will-maker signs the will, and they can even sign it later if the will-maker tells them his or her signature is valid.

Similarly, for a valid power of attorney, some states require only the signature of the principal (the person who is granting the power of attorney) to be notarized, but some states require the signatures of both the principal and the agent (the person who will act on behalf of the principal) to be notarized. In other states, one or more witnesses are required—and these requirements may also differ depending upon the type of power of attorney (financial vs. medical) you are trying to execute. If you seek the help of an estate planning attorney, you can rest assured that all of the “i’s” are dotted and the “t’s” are crossed and that your intentions will not be defeated because of mistakes made during the execution of your documents.

5. Assets may be left out of your estate plan - Many people do not realize that a trust is frequently a better estate planning tool than a will because it avoids expensive, time-consuming, and public court proceedings that would otherwise be necessary to transfer your money and property to your heirs after you pass away. Even if you have created a DIY trust, if you do not “fund it” (i.e., transfer title of your money and property into the name of the trust) it will be ineffective and your loved ones will still have to endure the probate process to finish what you started.

Further, if you do initially transfer the title of all your assets to the trust, it is likely you will acquire additional property or financial accounts over the years that must go through probate if the titles are not transferred to the trust. Regular meetings with an estate planning attorney can help ensure that your plan accomplishes your goals and that your grieving family members are not left with major headaches after you die.

We Can Help

A DIY estate plan can lead to a false sense of security because it may not achieve what you think it does. If your DIY will is not valid, your property and money will go to heirs specified by state and District law—who may not be the people you would have chosen. An unfunded trust will be ineffective. Banks may not accept a generic power of attorney you found on the internet. Laws affecting your estate plan may change.

These are just some of the mistakes or unforeseen issues that could cost your family dearly. An experienced estate planning attorney is aware of any trends in the law that could dramatically affect your estate plan and has the expertise needed to help you design and create a comprehensive plan.

Call us today at 301.892.2713 or click here so we can help provide you and your family with the peace of mind that comes from knowing that you have an estate plan that accomplishes your goals and will avoid unnecessary attorneys’ fees, headaches, or conflict for your grieving family when you pass away. Like mistakes with gas, some estate planning mistakes are permanent.

"Living with your bags packed!"

P.S. – I promise to post pictures of the garden as soon as the vegetables and fruits appear.

* For some reason, this article was never posted as scheduled (May 4, 2020).

NOTE: Sorry but we are not throwing out the Goya seasoning. Just will not buy anymore.