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Creating a DIY will is an affordable option that some people with simple estates choose to pursue. Though a DIY will can work, it is rarely recommended. There are many small mistakes that can lead to a judge deciding the will is invalid if it is ever challenged, and those mistakes only get easier to make when an estate is complicated.
DIY or “do it yourself” wills are when you create a will without the help of an attorney. This method is generally not recommended, as there are many pitfalls in drafting and executing a will that can cause it to be invalid once it is needed.
Even in very simple estates, potential mistakes could easily lead to your wishes not being followed and a judge deciding your will is invalid. And those mistakes are only more common when you have a blended family, many assets, family conflict, or a variety of other complicating factors.
There are certain procedures that must be followed in order for a will to be held up in court. There are many small things that must be done accurately such as ensuring the witnesses sign at the same day/time as the creator, correctly dating signatures, and physically signing the will rather than electronically signing it. An estate planning lawyer knows all the details and specific procedures that must be followed to ensure your will is held up in court.
Having a lawyer draft your will overall raises the confidence of the document. This means that courts and other third parties who could otherwise challenge it are less likely to do so when a lawyer drafted it. Not only are lawyers expected to have greater legal understanding of these things, law firms also often have their own uninterested staff members serve as witnesses. This raises the chance that the witnesses could be tracked down and testify in court, if necessary to defend the will from a challenge.
There are many life circumstances that should be considered in the creation of a will. What circumstances must be prepared depend on the person, but they include anything from planning for an additional child to having a significant change in financial circumstances to a beneficiary or executor passing away. A lawyer will know what clauses would be relevant to you and where to include them.
If someone forgot to include all property items in their will and didn’t include a residuary clause, that can cause ambiguous gaps. Not only can this cause a will to be questioned, it can also lead to disagreements about who gets what. Also, if a will is simply worded in a way that is confusing or unclear, that can lead to unexpected arguments in the beneficiaries. For example, if something was left to “my kids” without naming them or having specific instructions, a judge or executor could interpret that differently than you intended.
One common mistake occurs when a will outlines someone getting an item or an amount of money that is unable to be distributed. Either the item or property is no longer owned by the will’s creator or the amount of money outlined was over promised. If this happens, your executor has to make the difficult decision of how to edit your wishes. An estate planning attorney knows the right questions to ask and how to ensure this doesn’t happen by doing things such as using percentages rather than fixed amounts.
There are many small pieces of a will that are either required or if they aren’t present can cause the will to be questioned. Some DIY wills make major mistakes like failing to appoint an executor. That is a major piece, but even if a minor required aspect is missed, that can cause the will to come into question as well.
Different from seeing a section missing or done incorrectly, we have also seen partial DIY wills, where a page or two is completely missing. If anyone were to try to challenge the will, that would be a major red flag for a judge trying to determine if your will is valid.
Ultimately, if a will cannot be found it is not enforceable. If a will were to have been lost or destroyed it cannot be followed. A lawyer usually keeps back up copies, as well as recommends that your original will and estate planning documents are kept in a secure place in your direct possession, such as a locked fireproof safe at home or inside a safety deposit box. Having a law firm with an extra copy lowers the risk that your will would ever be totally lost at home. If you ever realize that you have lost them, you should immediately call your lawyer to re-sign originals and repair your file.
Having an attorney will ensure you understand how different legal entities interact with each other. There are certain assets that have beneficiaries assigned outside of a will. For example, retirement accounts like 401ks have beneficiaries assigned in the actual account. If a will attempted to override that beneficiary designation, it would fail. This could lead to your intentions being misattributed.
Wills are only one part of a comprehensive estate plan. Even when a will would cover the assets, it is also important to think about what happens if you are incapacitated or unable to make decisions for yourself. This is when powers of attorney come into play where someone is able to take over your finances and make healthcare decisions for you.
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Here are the basic legal requirements for a will in Wisconsin:
While not a formal requirement, having your will notarized is also recommended. It raises the likelihood that it will be enforced and upheld, as the notary guarantees that the two witnesses were actually in the room. This saves you from needing to formally summon them to court if there was ever a challenge or question on your will.
A lawyer is always recommended in drafting and executing the signings of a will. Even when the estate plan is a simpler one that you don’t expect to be challenged, we would only recommend you draft and execute a will yourself if you are an extremely detail oriented person who has legal experience or knowledge. If you do try it on your own and get confused at any point in the process, it would be best to call a lawyer to assist.
Even if you feel prepared to draft a legal document, you should not make your own will if you expect family members or other third parties to challenge it and/or be angry with what you wrote (such as for disinheriting an heir). This raises the chance that your will could be challenged and over-analyzed by lawyers who seek to find a single mistake you made within it, with the ultimate goal of a probate judge tossing it out of court as invalid.
You also shouldn’t be making your own will if you have a complicated asset portfolio or large and/or unique family structure. Even blended families with step-children should strongly consider hiring a lawyer to draft their estate plan.
The key benefit of a DIY will is that it is cheaper because it avoids the attorney fees for creating it. While DIY Wills can save you money in the short-term, if your will is later challenged and must be defended in probate court someday, your estate will spend much more money in litigation fees than the cost of having a lawyer draft your will on the front end.
Other than price, if you or a loved one are close to death and/or do not have access and time to meet with an attorney, then a DIY will would be better than no will at all.
If executed property and upheld by a probate court as valid, DIY wills can be legally binding. However, it can be challenged in court and any mistakes in the will can lead to your wishes being altered.
Yes, all wills require two uninterested witnesses. Uninterested means they are people who are not in the will as either the executor or a beneficiary. The notary does not count as one of the uninterested parties.
It is not a requirement to have a will notarized, but it is highly recommended, as it makes it easier to prove that your will was valid in court after your passing. The notary guarantees that the two witnesses saw you sign it, eliminating the procedural requirement to summon them to court.
Using a notary lowers the evidentiary burden of getting your will admitted into probate court. Using a notary on your will is called a “self-proving affidavit” in Wisconsin.
No, there is no type of will that avoids probate. Avoiding probate requires other estate planning actions, like forming a trust or using payable on death beneficiary designations. Wills, are in fact, the guide through the probate process. They do not avoid it.
