What are the Potential Pitfalls of the Do It Yourself “DIY” Will”?

The Pitfalls of DIY Wills: Lessons Learned from a Florida Probate Case

When I am discussing estate planning with people, I often get questions about “Do it Yourself” and services that help you create wills online.  These services are growing in popularity, and more and more people are turning to online services to meet their legal needs.   I thought it might be helpful to discuss some of the pitfalls of online estate planning in this blog.  I hope that you will consider the following before creating your will online, or through “do it yourself” software.

 The case of In re: Estate of Aldrich heard in a Florida appeals court exemplifies what can go wrong when using online products to create wills and other estate planning documents.    In this case, Ms. Aldrich created her will using a downloaded template from an online legal forms company and did not retain an estate lawyer to provide her guidance or review her work. 

 She left specific assets to her sister, and then to her brother if her sister pre-deceased her.  Her sister pre-deceased her. The sister, Mary Jane, died leaving Ms. Aldrich land and cash.  Ms. Aldrich did not update her will.  Sounds straightforward, right? The assets should go to her brother no matter what because the will named him? Not so fast.

 The template she used did not include a residuary clause, which establishes where unnamed assets should go. So, the specific assets went to her brother, but what about the remainder? Ms. Aldrich had not included a residuary clause which disposes of unnamed assets. So, it was not clear where she wanted the assets to go. 

 In Florida, unnamed assets are disposed of to “heirs at law,” or by statute. In other words, Florida’s intestacy law determined how Ms. Aldrich’s unnamed assets were to be distributed, and they passed to her nieces, the children of a pre-deceased sibling.  This occurred, of course, after a long, expensive and unnecessary court battle between the nieces and Ms. Aldrich’s brother. 

 Ms. Aldrich would not have understood the importance of a residuary clause because she was not a lawyer, not familiar with Florida’s intestacy laws, and not truly educated about such matters. Most people are not. This is not to lay blame with Ms. Aldrich. It just lays bare the truth that cheap is not necessarily good and that the estates law can be very complicated, filled with what seems to be arcane and confusing language to somebody who is not familiar with it. 

 Online services do not provide personal legal advice or ongoing legal support. If Ms. Aldrich had worked with an estate lawyer to develop a plan, her wish to leave her estate to her brother would have probably been realized.  Instead, he was left with a lawsuit. 

 People that use online services often do not have a lawyer review the finished product, “the plan.” They then set it aside and forget about it. As a result, they do not consider new assets and life changes.  As a result, when they die, their wishes cannot be carried out because the plan they drafted did not reflect those wishes.  The attempt to save money by ‘doing it yourself’ becomes an expensive, complicated mess.

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