Online Wills vs. Hiring an Attorney

 In Estate Planning/Wills, Helpful Articles

If you need to do a Will in Colorado, you probably know you should also have an Advanced Medical Directive, Medical Durable Power of Attorney and other documents that work with your Will to protect you and your heirs.  Online forms for wills are very popular because they are extremely economical and quick to do. Some sites are actually free and a few promise that if your assets are under $5 million, you can still use their site. In fact, it’s hard to imagine why anyone would pay an attorney to do a will when it is so cheap and easy to do one on-line.  Allow me to justify my existence (as well as that of other attorneys who do wills):

1. Most On-Line Wills Don’t Include Important Related Documents – Most on-line wills and forms do not include an advanced medical directive (which says what you want done if you are so ill or injured you can’t speak for yourself), medical durable power of attorney (it gives your agent the power to make decisions for you if you can’t speak for yourself because of illness or injury), power of attorney (allows a specific person to handle certain business and financial items; useful if you are incapacitated), burial memorandum (so that those closest to you know what want done), personal property memorandum (your personal things that are significant to you and others).   Our office includes all of these documents because a Will is not enough to protect the client or their heirs.  An example of why this matters: You develop Alzheimer’s some day and you can’t speak for yourself on medical issues and your house is about to be sold at a tax sale for failure to pay taxes. With these documents, an adult child or a friend could step in, make medical decisions that are in line with what you would have chosen and save your house for your beneficiaries.

2. Colorado law vs. Generic Law or Law from other States – Some on line wills do not respect the laws of any specific state and so they might fail in probate court. There are a few, more sophisticated online packages that ask what state you are from, but many do not. There are so many errors and omissions from these wills that it’s hard to cover them all. One short example is that Colorado requires two witnesses for the will. Why does this matter? A properly done will with no witnesses or just one can be contested by a party who doesn’t like your will or because the judge finds it invalid. That means your beneficiaries have to spend time and money fighting in probate court.

3. Two page Online Wills Miss Critical Issues – Most people find long legal documents quite annoying and hard to understand. A two page will or printed form that is done in ordinary language sounds appealing, but might be missing quite a few items that matter. As an example, if I am doing a will for a person who is living with someone they are not married to, I need to specify who is the Executor (the person who carries out the will, also known as a Personal Representative), who the health care agent is, and what happens to personal property. Why does this matter? In one case that I dealt with at the probate stage, the surviving partner was thrown out of the deceased partner’s house by his parents and lost all of her personal belongings. She also would have had no right to be present at the hospital or assist in her partner’s medical care if he had survived long enough to need her help. Both parties were relatively young and they hadn’t thought they would need to deal with these issues at this stage in their lives. If I had done the will for this woman’s significant other, I’d have asked him if he felt strongly enough about her that he wanted her to have some of his estate (bank accounts, house, possessions). Even if he didn’t feel that strongly, I would have asked if he wanted to offer her a period of time before she needed to move? Did he want her as his primary health care agent? Part of the reason I have for writing this article is that this case still bothers me. I strongly doubt this young man would have been pleased that his parents had shown up and thrown her out the weekend after he died.

4. Online Wills Don’t Ask Enough Questions – Most online forms don’t do any of this because it would require fairly sophisticated programming. Many of my clients say that they have a simple, straightforward will but when I begin talking with them, it becomes clear there are some things unique to that client and their family which means adding in specifics in their documents to handle their concerns. An attorney asks detailed questions about who they want as a health care agent, who the back up is if their primary person can’t serve, and what they want done by a health care agent if they are unable to make their wishes known to a doctor (related to painkiller, artificial nourishment, types of care, how long they’d want to be kept alive in case their condition change, etc.). Those choices vary from client to client but all of those choices matter to most people. Likewise, when you do a will, you need to pick a personal representative (same thing as an Executor – this person carries out the instructions of the will). Many wills will automatically name your spouse, which is fine if they don’t happen to die with you or before you and if that’s appropriate. However, imagine a situation where a spouse who has never handled money, has always deferred to the other spouse and is in frail health suddenly becomes executor. Perhaps a better idea would be to have named an adult child who is a CPA and has more background. I find this out by asking questions and making sure the people assigned to those jobs are going to be able to do them.

5. Online Wills Don’t Explain Anything or Give Options – I’ve actually done some online wills to prepare for this article and I’ve noted they don’t explain much and they certainly aren’t designed to answer questions or advise you. For example, they might assume you want your spouse as your health care agent or as a personal representative and they don’t ask for a back up.  The online versions don’t check to make sure your spouse  is in good health, good with accounting functions and able to do these tasks.  They don’t mention it is always good to have a back up in case the first person you named can’t do it.  There are many legal terms, concepts and choices that should be explained or you might get a will that doesn’t make a lot of sense and doesn’t work properly.

6. Online Wills Don’t Know When You Don’t Get It – Many people are unfamiliar with legal terms and they will mistakenly fill in an online form incorrectly. For example, online wills ask if you want to make specific gifts but that’s confusing to many people. An attorney would explain that you can give a piece of property in the will, a specific monetary bequest (for example, $5,000.00) or you can list an item in your personal property memorandum that they might find valuable. It’s important to be clear what you are giving. I can imagine there are some pretty interesting wills out there that some poor Executor and Probate Judge are having difficulty dealing with because the Will doesn’t make sense. Example: The will says the principal beneficiary is spouse or if spouse is dead, the kids. The will also directs the Executor to make gifts to various friends and relatives if there is enough money to do so. Great idea, but what does that mean? Worse, what if the will makes so many bequests that the widow is disinherited because there’s not enough in the estate to do that? An attorney’s job is to do the math and draft the will so it will work if a variety of things change in the future.

In my view, online wills are as reliable and safe as do it yourself medical advice on the internet.   If you do an online will, at least run it past an attorney to be sure it says what you think it says since the price of an hour consult is considerably cheaper than an invalid will. Better yet, call me for a free consult and get your Will and other documents done easily.


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