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Recognizing the importance of having a will in place, many people will head to Google to find a free resource for creating an online will. After answering a few questions, they may print off and sign a document, and feel confident their affairs are in order. Many options exist for creating online wills. However, what seems a straightforward process can be fraught with costly errors that will fall to your beneficiaries and devalue your estate. While we understand the appeal of using online wills, these documents often do not stand up in court and usually do not achieve the estate planning goals people have when creating them. Read on to learn more about the biggest problems with online wills.
What is a Will?
To understand the main problems with creating online wills, it’s a good idea to first address what a will is. When properly drafted and executed, a will is a legally-binding document that lays out your final wishes regarding how you’d like the assets of your estate distributed after your death. Your will also identifies who you’d like to serve as your executor to carry out your final wishes.
The will itself does not transfer your assets or invoke any real authority to your named executor. Instead, the will provides guidance to the probate court regarding who you’d like to administer your estate, who your beneficiaries are, and how you’d like your assets distributed. Once accepted as valid, the probate court appoints your executor and oversees asset distribution to your named beneficiaries. To be legally admissible, a will does not have to be drafted by an attorney, which is why people will often rely on online wills. However, every state, including Ohio, has very specific requirements about what a will must include – and how it must be executed – in order to be considered valid. Without a valid will, your estate is administered according to statute, which is often counter to peoples’ final wishes.
Problem #1: The Online Will is Deemed Invalid
Each state has different requirements that constitute a legally binding will. Some basic premises are the same from state to state. These include being over 18 and having a sound mind and body without being under undue influence or duress. However, problems often arise when people overlook fine print instructions. Some states will accept an oral will, and others require the will to be entirely in the testator’s handwriting. Certain states require notarization, including two witnesses, and some states require three witnesses. Online forms are often outdated, generalized, and do not reflect a person’s specific current state law. Failure to execute a will with proper forms, witnesses, and in compliance with your state law will invalidate the document in court.
Problem #2: The Online Will is Unclear
Online wills are generic templates that offer little guidance when it comes to filling out important details. For example, a will may reference “my daughter” but does not name the daughter or identify all of the children the testator recognizes as their own or intends to include in the will. If the will can be interpreted in many, conflicting ways, the probate court will often deem the will invalid. Particularly in cases when the will deviates from statutory distribution—as is the case when a person disinherits a child—the court will be hesitant to accept a will that is vague or unclear. If the court has trouble with vague or confusing descriptions of your property and associated instructions for its dispersal, they may opt not to follow your instructions.
Problem #3: The Online Will is Unenforceable
The probate court will not allow illegal or impractical conditions on your beneficiaries before receiving their inheritance. Each state has specific laws about what constitutes “illegal or impractical” conditions. For example, you may want to leave money to care for your pet, but a pet cannot legally inherit money. You have to identify a person to receive the money for the care of your pet or create a pet trust. Similarly, in most states, minors are unable to receive inherited assets directly. In Ohio specifically, the probate court will order all or a portion of the funds inherited by a minor to be held in a trust for the minor’s benefit, often with the court appointing the trustee of the trust. When a will has unenforceable provisions, the court can decide those provisions don’t exist. In this case, the assets would be distributed according to the remaining provisions. However, in extreme cases, these unenforceable provisions may invalidate the will altogether.
Problem #4: The Online Will Doesn’t Do What You Think It Does
Many people use different estate planning terms interchangeably—will, living will, trust, etc. But in fact, each of these documents serve very different purposes. Unfortunately, people often go online in search of a document to do one this, but end up creating a document that does something else. For example, a living will is a healthcare directive with very specific requirements for being enforceable. If your end-of-life medical care wishes and subsequent funeral arrangements are in your will, the information is unlikely to be read until after your death. A will and a living will are completely different documents, but many people creating an online will mistakenly combine them—or create one in place of the other.
Problem #5: The Online Will Doesn’t Meet Your Estate Planning Goals
Whether drafted by an attorney or created online, a will does nothing more than direct the probate court regarding the distribution of your assets after your death. If your estate planning goals are to avoid the costly and public process of probate, protect your assets from creditors (including Medicaid), or create any kind of inheritance structure for your beneficiaries (including minor children), you will need a structured estate plan beyond simply creating a will. All too often, people assume a will allows a person to avoid probate or somehow protects their assets from creditors of the estate, and these misconceptions create costly headaches and additional heartache for their loved ones after their death. Without meeting with an estate planning attorney, it is nearly impossible to know whether your online will achieves your estate planning goals and needs.
Generally speaking, a comprehensive estate plan includes a will, trust(s), power of attorney, healthcare directives, and nomination of guardian for minor children. These legal documents work together to achieve your specific estate planning goals, and without them, you are risking potentially costly court proceedings leading up to and following your death.
At Pierce Legal, we get to know each of our clients, gaining a meaningful understanding and relationship with you that allows us to create a custom-tailored estate plan that will satisfy your specific estate planning goals and needs. Our practice provides professional legal advice and guidance focused in the areas of asset protection through proper estate planning, business services, and real estate purchases and transfers. Contact us today to schedule a consultation at (330) 588-6115.