You should not use do-it-yourself will-creating websites because:
The language in the will probably won’t be effective.
The consequences of poor language in the will are severe.
Online sites don’t have accurate information about the law.
You often can’t sue websites if they draft your will incorrectly.
A website cannot determine your emotional and personal needs.
Recently, I received an advertisement in the mail for an online service that boasted that they could create a will for me in twenty minutes. All I had to do was visit their website, enter some basic information, and voila – there my will would be.
“If it sounds too good to be true, it probably is.”
In recent years there have emerged a large number of websites that claim they can help you create a will, without a lawyer, online. Some of the better known are LegalZoom, RocketLawyer, Nolo, and Mama Bear Legal Forms.
The homemade will industry isn’t new. Prior to the internet, you could go to the store and buy “will kits” which contained forms; supposedly, you could fill out these forms, and there would be your will. You could save a lot of money by not hiring lawyers. Or so they claimed.
Elsewhere on this site, I’ve explained why you should not use homemade will kits to prepare a will yourself. After the direct-mail ad I received, and because of the large number of Americans who have been taken in by such schemes. I thought it necessary to write a complete post on this topic, and explain in more detail why it’s best to hire a lawyer to draft your will, rather than prepare one yourself using an online service.
Five Reasons Not to Use Online Will-Creating Services
Reason # 1: You may think that the language you use in the will is effective, but it probably isn’t.
A will needs very precise language to be effective. Likely, only a trained estate planning lawyer knows the language you really need for your will to be effective. If you write your own will, you may think that a statement is crystal clear, but it isn’t. I’ll give two examples of commonly-made mistakes.
1. Suppose John Jones, Sr. writes a will that says, “I leave all of my property to my son, John Jones, Jr.” Seems clear, right? How could this possibly be misinterpreted or go wrong?
Plenty of ways. Suppose John Jones, Sr., had another child, who died before John, Sr. This child had children of his own. Oklahoma law says that, in such a case, the children of John Sr.’s deceased child automatically inherit a share of John Sr.’s estate, unless that will contains language that explicitly omits these grandchildren. In John Jones, Sr.’s case, the will he drafted does not mention his grandchildren. So, while John Sr. may have thought that there was no problem with his statement, “I leave all of my property to my son, John Jones, Jr.”, the statement actually creates a host of legal problems. When I was writing this post, I used a will-creating website to create a mock will. The website never asked about children who died before me. This is a SERIOUS oversight, and demonstrates that you should not trust such a website under any circumstances.
2. Suppose Mary Doe writes a will that says, “I leave, to my daughter, Jane Doe, all of the items that are in my garage at the time of my death.” That’s clear enough, isn’t it?
No, it isn’t. Just before Mary dies, Jane Doe can take her mother’s valuable jewelry collection and stash it in the garage, and then Jane can claim that she has the right to inherit the jewelry under her mother’s will. Thus, Mary’s will refers to extrinsic facts that another person can manipulate. Courts have often struggled with whether to give effect to “facts of independent significance.”
These two examples, alone, illustrate the problems with drafting a will yourself. Because of the vast multitude of estate-planning laws in every state, there are many, many other examples, where, a statement that you think is absolutely clear, could be anything but clear.
LegalZoom says, on its own website, “80% of people who fill in blank forms to create legal documents do it incorrectly.” (See screenshot, below)
Thus, if you draft a will online, there’s only a one in five chance you’ll do it properly.
Reason # 2: Online will sites may not have accurate, up-to-date information on the laws of your state.
The Texas attorney Rania Combs, noted, on her blog, that when she viewed legal information on LegalZoom, some of the information on Texas probate law was over four years out of date. If the website you are using does not have accurate information regarding the state law, the will you create may not be effective.
Recall, in Reason # 1, above, that, state law often requires that specific language be in the will. Some of the online will sites will create their own language entirely, and allow you to merely fill in the blanks. But, if these websites do not have accurate legal information, the sites may prepare wills that are seriously problematic.
Many of the will-preparing websites themselves admit that they do not have accurate legal information. For example, LegalZoom says, “the legal information contained on the Site and Applications is not legal advice and is not guaranteed to be correct, complete or up-to-date. Therefore, if you need legal advice for your specific problem, or if your specific problem is too complex to be addressed by our tools, you should consult a licensed attorney in your area.” (See screenshot)
Mama Bear Legal Forms says, “Mama Bear makes no warranty that: (a) the site, the Mama Bear services or the Mama Bear materials will meet your requirements; (b) the site, the Mama Bear services or the Mama Bear materials will be available on an uninterrupted, timely, secure or error-free basis; (c) the results that may be obtained from the use of the site, the Mama Bear services or any Mama Bear materials offered through the site, will be accurate or reliable.” (See screenshot)
Why use a website to prepare your will, when the publishers of the website themselves admit that they have no warranty that their materials will be accurate or reliable? As I mentioned above, LegalZoom says on their own website that 80% of people who fill in the blanks to create legal documents do it incorrectly. While these will websites purport to help you avoid errors, these websites will not be able to help you avoid error if the websites themselves do not have accurate information on your state’s law.
Reason # 3: The consequences of an improperly-drafted will, or other estate-planning document, are severe and drastic.
If a will is not drafted properly, it could lead to nasty, drawn-out litigation among family members and heirs to the estate. A contested probate case can take several years and can cost tens of thousands of dollars in legal fees. There are many cases, where a will was improperly drafted, and the improper drafting of the will led to a high-conflict probate case. If the will had been properly drafted, the conflict would not have existed. The money that you spend on a lawyer to create a will, will almost certainly be less than the money your relative will have to pay lawyers in a contested probate case.
Many online will sites also purport to help you draft “advance directives” – documents where you specify how you want to be taken care of, and who should make decisions for you if you become incapacitated. If these documents are not drafted properly and you become incapacitated, you could be at the mercy of someone who will make decisions that you don’t want.
Reason # 4: You can sue a lawyer for malpractice if he drafts your will improperly, but you often can’t sue a will-creating website for a poorly-drafted will.
Many will-generating websites have “terms of use” that say that if you use the sites to help prepare your will, you cannot sue the websites if your will is not drafted properly.
Lawyers, on the other hand, are not allowed to make agreements with clients where the client agrees not to sue for malpractice. A lawyer also is not allowed to state that there is no guarantee that his legal advice will be accurate. Lawyers, thus, have an incentive to provide you with accurate legal advice, that will-drafting websites do not.
Reason # 5: Only a human being, and not a computer, can decide how to prepare your will to fit your personal situation.
In drafting a will, a lawyer must take into account your family and life circumstances. Every person’s life circumstances are unique, and a will must fit those unique circumstances. No computer, no matter how sophisticated, can be programmed for every conceivable life circumstance that exists.
In addition to legal considerations, a lawyer who drafts your will must also take into account very personal decisions about how you want to provide for your family members and other beneficiaries. These decisions can be very emotional, such that a good lawyer is almost like a counselor. A good lawyer, in talking to you, will see your body language, the tone of your voice, and from these cues ascertain what your true desires really are. Based on these emotions and desires, a lawyer will decide what is precisely needed for your situation. A computer cannot do this.
Here is one example: Suppose you have a child, and you want to disinherit the child because the child is a drug addict, and will only use your money to buy drugs. So, you use an online will website, and you type into the will website that you want to disinherit your child.
Now, consider another example: Suppose you have a child, and your child has told you that he doesn't want any of your money, but would prefer that you give the money to churches and charities. So, you use an online will website, and you type into the will website that you want to disinherit your child.
Now, in each case, you've given the same information to the online will website. But, the situations are entirely different. The situations are so different, that each case likely calls for a different way of planning your estate. But, because you've given the same information to the online will website, the website can't differentiate between the two situations. So, the website will likely draft a will that is not suited to your case.
A good lawyer, though, will be able to differentiate between the two situations. A lawyer will plan your estate based on your case, and your family situation.
Moreover, the drafting of a will takes a good deal of time to make decisions on how exactly to express your wishes in your will, and to research relevant laws. Some will sites claim that they can prepare your will in a matter of minutes. I, as a lawyer, would never take such little time to help a client draft a will. Accuracy decreases with speed.
Conclusion: Use a lawyer, not a will-creating website, to prepare your will
The only people who benefit from online will-creating services are the companies that publish these websites. Don’t take my word for this, either: The American Bar Association has formed a task force to study will-producing websites. This task force has come to many of the same conclusions that I have, and they have additional cautions against using will-generating websites. Read the task force’s report here.