Last Will and Testament and Power of Attorney

August 21, 2018 5:25 AM

I need to make a Last Will and Testament and probably a Power of Attorney. Do I get an attorney or use online resources?

My situation is fairly simple. Not expecting to go anytime soon. No kids. Not married. ~$350K total value (house, cars, $). I want to distribute it evenly between 2 people. I have no pets currently but will likely sometime in the future and should include $ for care.

There are any number of places to go on the internet for forms. Is any of these the best?

posted by anonymous to Law & Government (16 answers total)

Get an attorney. There's always something wrong with those forms or you make an inadvertent error.
posted by notjustthefish at 5:39 AM on August 21, 2018 [4 favorites]

Definitely get an attorney.
posted by sevensnowflakes at 5:49 AM on August 21, 2018

I've used Legal Zoom for other forms but not a will and everything worked out fine but having said that we had our wills drawn up by an attorney and it was probably the best $300 worth of peace of mind I've spent knowing my kids are going to be taken care of if I kick it. I know you don't have kids but one day you might have fur babies that's probably worth having an expert do.
posted by julie_of_the_jungle at 6:00 AM on August 21, 2018

Can sevensnowflakes, nonjustthefish or anyone else with expertise give more information about what problems could arise with software and what the likelihood of an error would be? From what I've read, the consensus seems be, "Creating a will with a do-it-yourself software program may be acceptable in some cases, particularly if you are a single person with a modest bank account or half of a young couple with no children. ...if you have significant financial assets or a complex family situation, like a blended family or a child with special needs — it is best to seek expert advice." (from NY Times, Why You Should Get Around to Drawing Up a Will). I used Willmaker and it seemed relatively straightforward and comprehensive. (I also tried Willing, but it didn't even allow for a testamentary trust, which seems to be a major flaw if you have minor children.)

Estate lawyers will of course tell you to use a lawyer, but that could be both because of self-interest and self-regard, and because they see only cases where problems arise, not cases where the computer-written will worked out fine.
posted by Mr.Know-it-some at 6:35 AM on August 21, 2018 [1 favorite]

For me, it’s just worth it because the money involved (hundreds of thousands of dollars) is so much more than the money involved in just hiring a lawyer(hundreds of dollars). It is also a bit of a service to the people that are dealing with your death that your affairs are in order.
posted by rockindata at 6:44 AM on August 21, 2018 [1 favorite]

When I did this it was just barely out of ICU and with at least some of the people involved around and the aid of the hospital's (whomever hostpitals have that go "we got this covered").

It was like paper forms from Office Max. It was terribly simple. The hardest part was figuring out which one pulls the plug and which one has to deal with legal shit.

So, attorney isn't a bad idea in the "this state, these 3 things, this crappy piece of paper and signatures and witnesses.... fine". But it can be done in the time it takes to go shopping and get suitable people in the same place to dot the i's and cross the t's. Like a day.
posted by zengargoyle at 7:21 AM on August 21, 2018

[all lawyerly disclaimers go here. I am a lawyer but I work in-house and not in trusts and estates.]

Some of this will depend what state you are in, and the broader risk will depend on what other heirs you may have/how likely they would be to get upset that they are not included in your will (or to even know that is the case).

If you have a simple will and nobody wants to fight, then it's pretty straightforward. Executor files in probate, she pays off all of your debts, and she distributes the rest. But if there is someone who thinks that they should be included, or who understands that without a will they would take some of your estate, there is a risk that they could challenge the will and seek to invalidate it.

You are not married and have no kids, but are your parents still alive? Siblings? Nieces or nephews? Cousins? Each of them might be your legal heirs if you died without a will. Each state has "intestate succession" rules that show who has dibs. Illinois' (purely by example) is here, and it shows that it roughly goes (1) spouse/kids, (2) parents/siblings, (3) grandparents (and offspring), (4) great-grandparents (and offspring). So if you died without a wife or kids, your brother or sister (or their kids) get your stuff. If you make a will that leaves your stuff to two trusted friends, and your brother is mad because he wants that $350K, he could challenge the validity of the will and if he won he'd have a claim to your money.

Grounds for contest are typically fraud (the will is a forgery or you were tricked into signing it), undue influence (the person who is the beneficiary had a special relationship with you and controlled your decision so it wasn't really free will), lack of testamentary capacity (you suffered some mental incapacity and didn't have the ability to enter a legal agreement of this sort), or some failure of formality (it wasn't signed by witnesses, or there weren't enough witnesses, or the witnesses signed it after the fact, or the original will is unavailable, or the witnesses were not disinterested, etc.).

Presumably you wouldn't have an issue with the first three, but the fourth one is why you hire a lawyer. She will be able to guide you through the formation/execution process and when you are done you can feel confident that (a) your will says what you want it to, and (b) it was signed, sealed, and delivered in a way that will stand up. And if you are worried about a challenge, she can help you include language that makes your desires clear (like, maybe you give your brother $1000 or include language that you know of your other heirs and expressly do not give them anything.)

With a super simple will, depending on where you are you ought to be able to get one for $500-$750. And most lawyers will have the Power of Attorney package ready to throw in. In Illinois, the medical and financial POAs are largely statutory, so they are really easy to make.
posted by AgentRocket at 7:40 AM on August 21, 2018 [4 favorites]

I used an attorney to help settle my mom's estate, one who came highly recommended. I was satisfied with his work, and had him write my own will. I was less pleased with the guy who wrote my mom's will. He apparently thought the thing had a shelf life, and a few years after first writing it, wanted her to give him $700 to freshen it up. None of her circumstances had changed in any way that would affect her estate. He also wrote her trust documents with clauses that made it tough for me to exercise her bank accounts when she wanted me to.

If you have friends who've had to execute an estate, be sure to ask them for recommendations of lawyers or software.
posted by Kirth Gerson at 7:48 AM on August 21, 2018

Some lawyers love it when people draft their own wills... Because the fees for litigating a badly drafted will are substantially higher than for drafting a will.

Many internet or other DIY wills can be perfectly fine for really simple wills. But, and here's the thing - you won't know if what you're trying to do takes it out of the realm of a simple DIY will. By the time the will comes into effect, you won't be around to make corrections so I think it's worth paying a professional to get it right.
posted by pianissimo at 9:06 AM on August 21, 2018

Nthing everyone that a good lawyer will do your POA (and you should also create a healthcare proxy) as part of the same package. I wrote my will six years ago and freshened it up when my mother died and needed to remove her add different people into the mix. The big deal is whether you think anyone would challenge it AND if you somehow have feelings about any of that. Like... if you'd really be bummed that one of your beneficiaries might lose their inheritance from you to a no-good family member who likes to sue people... use a lawyer. You can check Nolo for "Making a will in __________" (your state) and see what is involved (note: they do want to sell you software, they are not completely disinterested). You can look into your workplace and see if they have legal services as an option they have discounts or referrals for. I did mine for I think $900 the first time around (my situation is fairly complex) and then $500 for redoing it six years later. I have a personal relationship with my lawyer and he's answered a lot of other questions for me and I find the peace of mind valuable but it's one of those things everyone needs to find their sweet spot with.
posted by jessamyn at 10:21 AM on August 21, 2018

I did mine online, but I very little single named assets without a beneficiary already in place. My state has a healthcare proxy form available online that I filled out, had notarized, and put on file at the local hospital.
posted by Ruki at 10:31 AM on August 21, 2018

I'm normally one of the most vocal of the "get an actual lawyer" crowd on Mefi. And I'm not saying it would be a bad value or a bad idea to get an attorney in this situation.

But, honestly, if your assets are simple (no trusts, no foreign property, no weird stock options), your personal situation is simple (no kids, no exes), and your wishes are simple (dividing the estate amongst a few people, without conditions), then you can get by just fine with the most recent edition of a reputable guide to wills in your state. I did my own that way. We learn about a bunch of weird cases and contemplate bizarre hypotheticals for the trusts & estates portion of the bar exam, but most people's situations just aren't like that. It's not actually that easy to challenge the validity of a will in its entirety.

I'm not sure what you think you need a power of attorney for. If what you want is a health care proxy, your state almost certainly has a standard form available online.
posted by praemunire at 11:23 AM on August 21, 2018 [1 favorite]

And if you are worried about a challenge, she can help you include language that makes your desires clear (like, maybe you give your brother $1000 or include language that you know of your other heirs and expressly do not give them anything.)

Just to be clear, I know T&E law varies from state to state, but I am aware of no state that requires a testator to do anything in the will to explicitly disinherit people generally who might have been heirs had the person died intestate. That's what the will itself is for. You seem to be confusing this with wills that silently disinherit children, which can be an issue, but not for OP. The law tends to take a background assumption that you will leave your estate to your kids, so there's a little room for uncertainty there if you don't, but there's no such presumption in favor of a sibling or parent. If you have a will and they're not in it, they're not your heirs.
posted by praemunire at 11:37 AM on August 21, 2018

> Can sevensnowflakes, nonjustthefish or anyone else with expertise give more information about what problems could arise with software and what the likelihood of an error would be?

One example from my practice. I was presented with the wills of a couple who had used LegalZoom or another similar online service, and the will began with at least three pages of detailed instructions about their funeral arrangements, services, burial, etc. But in my state, the personal representative of the estate has no authority over these matters, and those pages were entirely meaningless except perhaps as advisory comments to those who do have that authority - their nearest relatives.
posted by megatherium at 8:05 PM on August 21, 2018

Just a data point - my father recently consulted with an attorney his company (his union, actually) keeps on retainer to help employees with wills, POAs, etc. That’s to say, the attorney didn’t have a profit motive to sell him anything. After going through his situation - a few financial accounts, car, and house that he wants to leave to me, my brother, and his wife - the attorney advised my father that a will wasn’t really necessary, since all of his intentions could be guaranteed with the transfer on death paperwork already on file for his accounts/car, and an amendment to the deed of his house to add a transfer on death clause (the lawyer is going to help them with the deed, and I understand this type of deed isn’t recognized in all states). In my dad’s situation, and maybe yours, a will might be necessary if he wanted to divide up possessions in a certain way, or if he had assets of significant value that didn’t have a transfer on death provision, or if he wanted to set conditions for inheritance, or anything else more complicated. As is, he not only doesn’t need an attorney to draw up a document, he doesn’t need a will at all.

The pet might be a complicating factor for you, but a little googling raises some doubts as to whether a will is the best (or at least, a sufficient) way to provide for this type of care. Here’s an interesting rundown from the American Bar Association. Here’s something from the Humane Society with a more practical approach, but that also mentions the will/trust/POA advantages and drawbacks and limitations.
posted by exutima at 6:32 AM on August 22, 2018

Use legal zoom to make a draft, think about what you're trying to accomplish, then have it executed by an attorney.
posted by theora55 at 11:16 AM on August 22, 2018