Doing it Yourself

Attorneys and other estate planners do not come cheaply, so when it comes time to make your last will and testament, can you go it alone? Doing it yourself may be the fastest, easiest, and least expensive option, at least if your estate is very simple. Even when this is true there will be significant variation among states, it is best to avoid doing it yourself if you have:

  • Minor children, since the language outlining guardianship and conservatorship is very specific and complex; and/or 
  • A blended family where there is no option to leave everything to your current spouse. 

It’s not just ‘I leave everything to my spouse’ situations that can be managed by you, with the correct source you can handle more complicated situations. Will templates can be found in many places, including a downloaded fill-in-the-blank “flat” will form, will-making software, websites with will-making programs, books or articles with detailed information, or statutory wills. California, Maine, Michigan, New Mexico, and Wisconsin offer statutory wills which are simplified will templates specific to that state.

Many estates with higher levels of complexity can be done without professional help. Your ability to do this will vary, depending on your abilities and complexity of the laws in your state. You must be honest with yourself when deciding, with help if necessary, what level of complexity you can handle before going to a professional.

There are certainly places you can access will documents or programs, but most are designed to be simple and may only cover the most basic details or steps of estate planning. These sources may not be able to keep the templates or program up to date.

A Summary of the Will-making Process

This process was partially outlined in What Should Be Included in Your Will. Should you decide your will is going to be simple to create, here is a brief summary of the steps to take. Each step should be labeled as consecutively numbered “Articles.” The details of each will be found in a separate section.

  1. Begin by clearly labelling the document “Last Will and Testament” and state your full name and address. You should number each page.
  2. Write an introduction to your will, which may be labeled as Article One.
    • You must testify that you are at least 18 years old, are of sound mind, and are not creating the will under duress or undue influence. Some states allow you to be younger under certain circumstances such as being married or an emancipated minor, or having a terminal illness.
    • State that this is your last will and testament, and that it invalidates any previous wills or codicils (agenda or additions).
    • To make your identity absolutely clear you may want to include your social security number and birth date, other identifying details such as maiden name, identification number, or spouse and children’s name.
    • If you are using an online program, the program may automatically generate this introduction.
  3. Select an executor/personal representative, usually a spouse or close friend. You could title the section Article Two or a more specific heading such as Appointment of Administrator(s).
    • Most states require that your executor be 18 years old, although some require them to be 19 years old. One allows for a 16 year old executor. Check your state’s law.
    • You may appoint a professional executor if you prefer. It is best to designate one or more alternates or backups.
  4. Identify your heirs/primary beneficiaries in a section you titled Family Relationships or Beneficiaries. Beneficiaries would typically include your spouse/life partner and children/descendents.
    • Be sure you clearly identify them by their full name and relationship to you so that there is no ambiguity as to their identities.
    • It is best if beneficiaries do not sign or “witness” the will. This may be illegal in many states.
    • Include some what-if provisions in case a named beneficiary cannot inherit as intended (e.g., the beneficiary has died).
    • If you are intentionally leaving someone out of your will, including an explanation why might prevent challenges after your death.
    • Pets cannot be named as beneficiaries.
  5. An Appointment of Guardian(s) section names a guardian for any minor or dependent children if there will be no other natural parent to take care of them. If you do not choose a person, the court will appoint one.
  6. Assess and divide your property, except assets that already have a designated beneficiary such as a trust or are jointly-owned, which are not considered part of your estate by the probate court.
    • Give clear details for assets including their location, market value, and specific information needed to access them.
    • Specify how assets (real estate, vehicles, investments, collectibles) will be divided among your beneficiaries. Minor children cannot own property, so you will need to name someone and/or a trust to manage their inheritances until they reach the age of majority.
    • Create a separate section for assets in:
      • Other states which may be subject to state-specific estate or inheritance taxes;
      • Foreign assets which may be subject to country-specific inheritance taxes and/or regulations.
    • Try to account for everything even if it is just a blanket statement called a “leftover clause,” that says everything else goes to (beneficiary name).
    • Include any taxes, debts, or liens on the estate.
  7. You may want to create a “Bequests” section that lists other people or entities who will receive property or cash.
  8. You can express your preferences for your funeral and how you would like your remains to be disposed of.
  9. Print your name followed by your signature in the presence of at least two witnesses; some states require three.
    • If you have created a will using an online service, have it sent to you so you can sign a copy.
    • Some states require that your signature be notarized, i.e. signed in the presence of a public notary and stamped with the notary’s seal.
      • Even if not, it may be best to have it done anyway.
      • An alternative is for them to sign a “self-proving” affidavit.
        • This is a statement that is sworn by your witnesses before a notary public.
        • This affidavit relieves your witnesses from having to swear in probate court to the validity of your will.
    • You may want to include a short paragraph stating: This document, consisting of (number) pages, was signed by (Your Name) as their Last Will and Testament in the presence of us (the witnesses), at your request, in your presence and in the presence of each other, has been signed with our names as witnesses. We each certify that at the time they signed this Last Will and Testament, (Your Name) was mentally competent and acting voluntarily.
  10. Have the number of witnesses required in your state sign your will.
    • Most states require that they sign your will at the same time you do.
    • Include their printed names and their addresses.
    • Confirm that they are of legal age, sound mind and not under duress or undue influence upon signing.
    • Your beneficiaries should not be witnesses.
  11. If you are doing it yourself, you must carefully follow the laws of your state. Any mistake can invalidate your entire will. Make sure what you are using accounts for state-to-state variations in state estate taxation, inheritance tax, notarization, number of witnesses, probate laws,  disinheritance allowance, and all other aspects of the process.

Making Sure Your Will Is Valid

In order to have a valid will, you must be of legal age. In most states this means you are at least 18 years old, have been lawfully married, or are a member of the U.S. military. You must be of sound mind and can attest that you are creating your will voluntarily.

Since all wills are subject to the probate process, it is crucial that you get it right. The probate court has the option of invalidating any part of or your entire will if it doesn’t meet their standards.

  • In this case, the probate process will proceed as if you had no will, beginning with designating an administrator to manage your estate.
  • Even specific sections which require very specific language can be invalidated with the court making the decision for you.

Getting the details correct

Law itself is a very complex subject. even things that appear to be straightforward can be complex.

You need to completely understand the difference between probate and non-probate assets enough to list the appropriate ones.

Using incorrect legal language, simple mistakes like forgetting to put the date, or contradictory instructions may invalidate your entire will or certain sections.

Invalidation results in leaving it to the court to decide on any unvalidated sections or instructions and a lot of extra time and money.

Making mistakes makes it much easier to contest the will.

State and federal laws concerning wills and estate taxes are constantly changing and most people are not able to keep pace with it.

Even if naming beneficiaries and distributing your assets appear easy, there may be documents or addenda to the will that would make it easier to update the will, list assets by type, and distribute assets to a wider group of beneficiaries.

When to Get Help

If your estate is large and complex, you may not be able to manage it yourself. You should consider getting professional help if:

  • You can only find a will template/program that is too basic to handle your needs;
  • Your estate is valued high enough to owe federal and/or state government estate taxes;
  • You own any trusts (no beneficiaries) or businesses;
  • Your tax returns will be very complicated;
  • You have real estate in another state or country;
  • You’re not sure what property you own or it’s value;
  • You want to leave property to a minor child or person with a disability;
  • You want to put conditions on how your beneficiaries will use the assets;
  • There is any chance that your will might be contested;
  • You own more than $5 million worth of property and/or have digital assets; and/or
  • You want to put conditions on gifts.

Other Things to Consider

Be aware of ways to reduce estate and inheritance taxes before starting your will, otherwise you could miss out on saving this money.

  • You may expose items to the probate process that don’t need to be.
  • If you learn about and perform these steps later, you would need to redo your entire will.

Will you be able to anticipate and plan for all contingencies, such as the death of a beneficiary? You may be able to envision most of them, but professionals have experience and could be helpful.

Will templates/programs can guide you through the correct way to make special requests or inform you about those you can’t. For example, some states do not allow certain individuals to be disinherited.

Remember how important all that legalese is for these requests to be recognized.

Once you have created your will, you may opt to have it professionally evaluated at that point. It would assure the will is valid, but be less expensive than having it done entirely by an attorney.

You can alter your will by yourself by using codicils or writing a new will

Resources

What Is a ‘Valid Will’? FindLaw website. Updated: January 19, 2018. Accessed: November 9, 2020.

Share this: