Should You Write Your Own Will or Trust?
Often times I’m asked, “can you write your own Will or Trust?” The simple answer is yes, you can write your own Will or Trust. However, you can also perform your own surgery, invest your own assets and buy your own house. But as a doctor, financial advisor and real estate agent will tell you, attempting to cut corners in areas that require expertise usually ends up costing more than it saves. This is also true in the area of estate planning. So the question should not be “can you write your own Will or Trust?” or “should you write your own Will or Trust?” The question should be, “what benefits are there if you decide to write your own Will or Trust?” The common answer is of course money, but as you will see, this is rarely the case.
Using Online Services to Write Your Own Will or Trust
Many people have attempted to write their own Will or Trust through online services, such as Legal Zoom. This “fill in the blank” approach is problematic because the forms are either filled out improperly by the individual, or the more common situation, the computer generated form does not fit every individual’s family situation.
For example, not every person wants to give her money to her spouse, and then to her two kids. And even if you did, how would that work mechanically? Do you want your children to have all of their money at 18? Who holds the money until then? Do you want your spouse’s mother to hold the money? What if the “holder” of the money (the “Guardian of the Estate”) uses the money on herself? See Guardianships: Don’t Think You Need an Estate Plan? What Happens to Your Child if You Die? What if one child is more responsible than the other? What if your parents are going to fight over the kids? This is just one line of questioning that must be discussed in-depth with an Orange County estate planning lawyer, or an attorney in your area who understands these issues and knows which questions to ask. Given this reasoning alone, the answer to the question “should you write your own Will or Trust?” is a resounding no.
The Reason You Hire an Attorney is Not so that You Don’t Have to Write Your Own Will or Trust
As I tell my clients, you’re not paying me so that you don’t have to write your own Will and Trust, you’re paying me to ask you the right questions and help you understand the issues that may arise with certain choices that you make. Failing to foresee these issues may cost your family much more in legal fees on your death than they would have if you had properly drafted your estate plan while you were living.
Interestingly, many attorneys who don’t practice in the area of estate planning, follow the “write your own Will or Trust” approach. Presumably, attorneys believe that since they went to law school, they can put together an estate plan. It’s not a surprise that these estate plans are usually some of the worst drafted plans, and inevitably result in Trust and Probate Litigation after death. If you decide to have an attorney draft a Will or Trust, make sure you go to an attorney that focuses on estate planning. The attorney that helped you with your personal injury case and your DUI is usually not going to have the knowledge and experience to properly draft your Trust. The area of estate planning is very complex, and you should hire an attorney that tackles these issues on a regular basis and keeps up to date on the changes in the law. In fact, estate planning is the second highest area of malpractice in California.
So, Should You Write Your Own Will or Trust?
The answer is almost always no because it will likely cost you more than it will save you.
John Wong advises on all aspects of estate planning, probate, asset protection and trust administration. He believes that estate planning is about planning for life; while having protections in place should the unexpected occur.
