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Making a Will in the COVID-19 Era

Before you consider the DIY route, know all the facts

spinner image Close up of  a woman hands holding a pen and signing a legal document
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The coronavirus pandemic has many people deeply concerned about their health and wondering what will happen to their loved ones if they contract the virus. For so many, the eventuality of death seems more real and more imminent than ever. Because of this, sales of online wills and legal documents have absolutely exploded over the past few weeks.

I’m a lawyer. I want people to use lawyers. But, most of all, I want whoever is considering making an online will or trust to have all the information — not just an advertisement from a form document website or a stern “Don’t do it!” from someone in the legal community. Please take this advice to heart and do what you decide to be in your best interests.

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Full disclosure: Professionally and personally, I am no fan of online legal documents. Here are just a few reasons why:

My mother (who did not expect to die at age 61) made an online will. I spent a year of my life having to be an executor for her tiny estate. It was stressful and so hard to manage when my heart was already broken and I was totally burned out from caregiving for her through cancer. It’s part of the reason I began to practice estate planning and probate — so I could help other people avoid what I went through.

Beware of costly errors

Generally, people use these websites because they want to save money. That is a lousy reason! What happens, often, is that you may save a few hundred dollars by creating an online will or trust. Then, your family has to spend thousands to go through the administration in probate court (often, when it could have been avoided altogether), or even worse, litigate because there is something wrong with the document. I heard an attorney at a Bar Association event joke that online estate-planning forms bought him his sports car. The joke was in poor taste, but the point is accurate. These forms create a lot of problems. When one has an error or misses something important, things are certain to go badly in court.

I’ve represented clients whose loved one made an online will that left no other choice but an extended court case to close up their loved one’s final affairs. Last month, I finally completed a probate that took several years because my client’s mom made an online will. All she owned was a small-value house. Her kids had to go out of pocket to pay my law firm’s fees. It was money that they didn’t have to spare but had to spend to avoid losing the house altogether. It all could have been prevented with some simple deed work. But template websites won’t tell you that.

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Forms become outdated — fast

Another tick in the con column for these online form services: It is very difficult for them to stay current with changes in state law. Every year, the legislature may tweak its laws governing probate, estates, trusts, advance directives and other important documents. If your form is outdated, the form will likely fail in court.

There is truly no substitute for advice from a licensed professional. Online forms don’t give front- or back-end legal advice on how to structure assets or beneficiary designations, how to minimize taxes, what the new SECURE Act is and what it means for your retirement accounts, how to avoid probate, how to protect your disabled spouse or child, and so on. The websites that sell these forms very clearly state that no legal advice is being given. They are one-size-fits-all products. Yet, no two people are the same.

Attorneys are still open for business

Across the country, estate planners and elder law attorneys are open as an essential service and adapting to the current circumstances and our clients’ specific needs. We’ve been coming up with creative solutions to serve people who want a will in case they are impacted by this virus. We are working longer-than-usual hours, checking in on our isolated older-adult clients, and holding “no-contact, drive-up” will signings. Trust that the attorneys who’ve been established in this area of practice (not those who see the coronavirus as a business opportunity and are trying to capitalize on it by suddenly advertising themselves as estate planners; make sure you ask any attorney how long they’ve practiced in this area) are working double time to help quell some of the very deep, reactive fears many of us are experiencing.

Also, be aware that most attorneys will not comment on or give their blessing for an online form you make. So, it’s not likely that you can call one and ask them to tell you if your template will is OK. Many attorneys would probably encourage you to create a new one, with licensed counsel, as soon as possible, in conjunction with a well-designed estate plan.

Now, here’s the rub: If you can’t leave the house, feel the desperation of not having your will done and believe that one of these online forms is better than nothing, make the decision you feel is best. You know the drawbacks now. But, if a DIY will gives you comfort in a time of great uncertainty, you may decide that is enough to outweigh the risks.

I wish you discernment in your decision-making, peace of mind in uncertain times, and health and longevity to you and yours.

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