The process of beginning to draft a Will can be a daunting task.
There are many reasons why individuals may decide that preparing their own will, in lieu of seeking professional help, is the right route for them to take.
Those reasons may include the cost associated with hiring an estate planning attorney, or the feeling that a lack of assets does not warrant a formal Will. Whatever the reason may be, it is important for one to understand the “do it yourself” Will process and how creating a Will without the assistance of an attorney can later affect the testator’s family after the testator has passed.
North Carolina law provides allowances for certain types of “do it yourself” Wills, but there are laws that govern the validity of these documents. Before an individual decides that the “do it yourself” route is best for them, they should examine their assets and personal property and make sure they understand the laws surrounding Will creation in North Carolina.
If a Will is improperly drafted and is found by the Court to be invalid, it can cause the testator’s family a lot of distress in the wake of an already trying time.
However, it is not legally required to have an attorney to do a Will, and it is perfectly legal to do a will on your own without a lawyer, just like it is completely legal to handle your own divorce or your own speeding ticket. However, just like with a divorce or a speeding ticket, most people research it, read up on it, ask their friends or people that have been through it, and muddle through the process without having a complete understanding of what is happening and the options available to them, or whether what they are doing is in their best interest.
With something as important as a Will, it is often not a good idea to muddle through when it comes to who gets your children when you die, who inherits your property, and who is in charge of carrying out your wishes.
Holographic Wills: The Handwritten Will
In North Carolina, probate law allows the testator to create their own handwritten Will, without the assistance of a legal professional. These Wills are known as holographic wills, and in order for North Carolina to recognize the validity of a holographic Will, there are three guidelines that must be followed.
For starters, North Carolina requires that the Will must be handwritten in its entirety in the testator’s own handwriting. The Will must have the testator’s name written in or on the Will also in the testator’s own handwriting.
Lastly, the Will must be found after the testator’s death with the testator’s valuable papers or effects or in a place of safekeeping.
Holographic wills may seem like a more cost-effective route, but the truth of the matter is that they are only typically cost-effective to the testator. In many cases, a holographic Will can be ambiguous or fail to establish clear meaning of the testator’s intentions. North Carolina does not require witnesses to sign holographic wills; however, after the testator’s death, a holographic Will must go before the probate court to determine its validity.
This means that the Court will call multiple witnesses to testify or multiple witnesses must prepare affidavits to establish the validity of the handwriting and as to the location in which the Will was found. Holographic wills are much easier to contest and are scrutinized more closely. Often, a holographic will can be ripe for litigation and cost tens of thousands or more to get through the court system, and sometimes are determined to be invalid on one of a number of technicalities.
North Carolina Will Formalities
According to North Carolina law, a valid written Will is constituted by several formalities. The testator must be of sound mind and eighteen years of age or older. Essentially, the testator must be found competent at the time the Will is executed. (Note: If the testator were to suffer a competency issue after the date of execution of the Will, it would not invalidate the Will.) It is also important to note that not only must the testator be found competent at the time of the execution of the Will, but any witnesses to the Will must be considered competent too.
There are basic components that should be present in a Will, regardless of whether or not the Will is created by an attorney.
- A Will should address the testator’s current assets and how the testator wants those assets distributed.
- When constructing a Will, it should include a list of beneficiaries, choices for executor/executrix and choices of guardians for any minor children.
- It is important to name an executor/executrix in your Will because, with very limited exceptions, even the simplest of estates still have to go through some form of probate proceedings.
Creating an Online Will with a DIY Company
With the rise of technology, creating a Will online may seem like a cost-effective and simple option. These “do it yourself” Will sites promote themselves by offering low rates for a basic template that a consumer can simply plug and chug the information into.
The problem is that most of these companies have created basic forms that are not tailored to an individual state and they may not comply with North Carolina law, which will invalidate the Will, or may simply not take advantage of some of the nuances of North Carolina law which might better serve your needs or make it easier for your beneficiaries.
These legal service providers are also not licensed attorneys and therefore cannot give any advice that may be misconstrued as legal advice, so if an individual makes a mistake in creating their own Will, these services will not be able to tell the individual there is a mistake. However, if an individual decides that they are way in over their head and have questions, they can pay a fee to speak with an attorney in their state, who can help them with the document.
Another thing to consider is what happens if there is a major mistake. DIY will makers often are large companies that are better able to resist litigation, thus making it cost more for your beneficiaries to hold them responsible for a mistake, and often the mistakes are in the parts that are customized by the drafter without the assistance of a lawyer.
Ultimately, when constructing a Will, it is always advised to seek the advice of a licensed attorney.
There are different insights an attorney can provide about the circumstances of one’s assets. An attorney can also assist in planning for backups in the case named beneficiaries or executors predecease the testator. Without a properly constructed Will, the testator’s family could potentially have to deal with a very unpleasant situation at a very emotional time in their own lives. At best, there could be confusing language requiring court involvement and additional cost to interpret.
At worst, there could be gaping holes in your estate plan that cause years of litigation and exhaust the assets of the estate. An attorney experienced in estate planning and experienced in the consequences of what they write by helping the families deal with the transition of assets after one passes is going to provide far more value to a person than a DIY company that provides broad general templates that may not keep up with the most recent changes to the law or may not provide sound guidance based on a particular person’s situation.
Further, an attorney is going to be able to make sure a Will is signed properly. Wills often have non-intuitive signing requirements, and an experienced attorney will know those rules. A do-it-yourself Will requires you to know those rules, and one foul-up could invalidate the whole thing or leave it questionable and thus subject to litigation and expense.
Problems with do-it-yourself Wills are one of the top reasons people come to our office to contest a Will or to report that a Will is being contested, and those are all costs and fights that could be avoided by assuring that you have professional guidance in getting it right on the front end. In our office, we are strong proponents of making sure that your situation is addressed in a way that is tailored to your specific concerns, assets, and family situation. A do-it-yourself Will is simply insufficient in many cases to deal with the nuances of the unique issues affecting people.
Consider an Experienced Legal Professional Instead of Doing a Will Yourself
When considering whether to get a Will done by an attorney or doing it yourself or doing it with some software package from your local office supply store, consider speaking with an attorney. Our law firm does not charge to sit down and discuss making a Will, and we only charge the client when they decide to actually have us draft a Will. Consulting with an attorney at no charge might assist you in deciding whether a do-it-yourself Will meets your needs or whether a licensed attorney that focuses on preparing Wills for a living is the better solution.
