Do You Really Need a Lawyer to Make a Will or Trust?

With the variety of options available today, it’s natural to wonder whether you really need a lawyer to make a will or create a living trust. After all, they’re just forms, right?


Wrong. In fact, do-it-yourself wills and trusts or online will and trust services often create problems for families, as reported in Next Avenue’s aptly-named article “The Problems With Do-It-Yourself Online Wills.”


The article reports that one DIY estate planning service had three different “packages” that consisted of the same document, just with different names. Those packages were also missing a key estate planning document that the average person would not know to ask about. Even attorneys who have taken courses in wills and trusts but who don’t practice estate planning law know it’s best to work with an estate planning attorney for their own will or trust.


Here’s why: If your estate plan doesn’t work, you’ll never know.  However, your loved ones will, and they’ll be the ones to have to make things right.


Granted, there are people who can safely do their taxes done online, because they receive simple tax forms from their employer. If there’s a mistake, the IRS sends a letter and they may have to pay a penalty or pay the taxes that were not paid properly. DIY seems simple enough in the income tax context (for some), so why do you really need a lawyer to make a will or trust?


Estate planning involves complex relationships between property, how it’s owned or how beneficiaries are structured, family dynamics, state probate and trust laws, and a myriad of tax laws that, if not properly analyzed in the estate planning process, can quickly wipe out any minor costs that a person may have saved by convincing themselves they did not need a lawyer to make their will or trust.


Good estate planning is all about expressing our wishes in a legally binding set of documents. The basic estate planning documents that everyone needs are a will, power of attorney for financial matters, an advance healthcare directive and if needed, a trust. If you expect to use any of these through a DIY website, expect to use a “fill in the blank” approach. This can be problematic, because most people don’t know what to write or how to say it in a way that ensures their intentions will be legally binding, which will not be determined until they have died, and by then it’s too late to fix the problem.


Although some DIY sites offer attorney consultations, some consider an attorney consultation to be a series of questions and answers through an online app with pre-written responses, and not a real attorney. And if they do offer live, personal attorney advice, I would suggest that you carefully read the fine print disclaimers for the real story, and not just the marketing or sales pitch on the website.


The problem with not using a lawyer to make a will or trust, is that we don’t know what we don’t know. Sure, we may know who we would like to receive our assets, but not what our state law requires to actually make that happen. Over the years, I’ve had several dozen clients come in with non-attorney prepared wills and trusts, and there has always been some hidden problem or incomplete element that they were totally unaware of. Lucky for them, we were able to fix it, but it would have been more affordable and less stressful for them to just do it right the first time.


Although you may be lucky enough to get away with not using a lawyer to make your will or trust, it is at best a risky proposition, and at worst, a reckless one. A qualified estate planning attorney will be able to create a will or trust based estate plan that actually works the way you intend, based on knowledge and experience that come about only after years of practicing in this area of law.


Reference: Next Avenue (March 29, 2019) “The Problems With Do-It-Yourself Online Wills.”


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