This is a question I come up against a lot.
Here’s the truth: You don’t technically NEED an attorney to write your will.
However — and this is a big caveat — if you don’t set up a will correctly, you may unintentionally cause your loved ones a lot of problems. And you won’t be there to set the record straight.
Very recently, I’ve had two cases where the person did their own will. It’s been a nightmare. Both individuals made the exact same mistake.
In the state of Florida, two witnesses should sign the will. Those signatures should be accompanied by a self-proving affidavit, which is notarized and validates for the court that the documents were signed correctly.
In both of these recent cases, the self-proving affidavit was not included. Both wills had two witnesses each, as required. However, the courts won’t recognize those signatures.
That makes the will essentially useless. The courts won’t adhere to the wishes you wrote down. Instead, state laws will decide what happens to your assets.
We have two options to fix this problem:
Option 1: We track down the witnesses and have them sign a new document called an oath of witness. That document has to be signed and notarized in person — and stamped by a deputy clerk. That’s a hassle for the witnesses, as you can imagine.
Option 2: We have to prove to the court that we’ve done a diligent search and did not find the witnesses (perhaps because they have died). The personal representative for the estate will sign an affidavit that either argues the undue hardship of locating the original witnesses or explains why we didn’t find them.
Both options are lengthy and expensive processes. If you’re trying to save money by preparing your will yourself, you may be passing a much more expensive bill on to your loved ones.
Of course, this is just one example of how things could go wrong. I’ve seen wills prepared so poorly that we have to proceed as if the person died “intestate,” meaning without a will at all.
The process is much smoother when the will is prepared by an attorney. An attorney should know the basic requirements to make sure that the court will automatically accept the will — without any hassle, extra documents or tracking down witnesses from 20 years ago.
I also provide my clients with a one-page sheet at the end of their will that gives them the flexibility to assign tangible personal property to specific people without calling witnesses back to the table. Items like wedding bands or your mother’s antique tea set are good to add to that list.
Because of certain language I provide in the will itself, that document is legally binding, even if you cross out the names and reassign items as your life (or the family drama) changes.
Your action items
Step 1:
Think through what should be included in your will. Here are some common questions for consideration:
- Who should get large assets like your house or property?
- If your children are minors, who should take care of them?
- If you own a business, what should happen to that?
- Are there family members who you don’t want to receive anything?
- Do you want to leave anything to a charity?
Step 2:
Hire an attorney. Discuss your wishes with them. They will advise you of the best way to make sure those wishes are followed. Everyone’s circumstances are different, and you may require documents beyond the will itself.
My consultations are free. Call me at (954) 314-4747.
Step 3:
Open an Estate in One Place account so your loved ones can find the documents you’ve carefully prepared with ease.
If you have any questions, email me at andrew@estateinoneplace.com.
Later this month, a trusted colleague will discuss what you should know about getting a mortgage. Given our economy, I’m looking forward to what she has to say.
