Where There’s a Will, There’s a Way: Why Your Way Might not be the Best Way

“Why do I need a lawyer?”

I often get asked this question because much of a lawyer’s work is deceptively simple.  For instance, a bankruptcy petition looks pretty straightforward:  you fill in your name and essential information, make a list of your assets and liabilities, sign it and file it.  Boom.  You’re done.  Then, several months down the line, you find out that the bankruptcy petition is a sworn statement under oath, and the seemingly insignificant omission of a source of income from the Statement of Financial Affairs is perjury, and you’re not only being denied your bankruptcy discharge, but you’ve also possibly committed a crime.  Oops.  Boom.  Now you’re really done.

The same is true with many other legal matters that seem simple and straightforward, but can result in harsh consequences for seemingly trivial mistakes.  Nowhere in the law is this more true than in the drafting and execution of wills.  The internet is full of will templates purporting to give you all the legalese you need to plan your estate.  It seems like a great idea, because it will save you a few hundred bucks for you to do it yourself.  Who needs a lawyer?

One of the organizing principles of American jurisprudence is that property owners have the nearly unrestricted right to dispose of that property as they see fit.  The law, when it’s working, curtails this freedom of disposition only to the extent that a person attempts to make a distribution to another person that may be prohibited or restricted – say, because the distribution is promoting illegal activity, infringes upon spousal or creditor rights, or otherwise runs afoul of the law.

Writing the will itself can be fraught with danger for people who choose to go it alone without help from a legal professional.  A will-writer who sets out to disinherit his entire family (wife and children) in order to leave his entire estate to his mistress and charity would be disappointed to learn that, after his death, the probate court invalidated his will, and gave his sizable fortune to the spouse that he could not disinherit completely and the children he could, but didn’t, because he did not consult an attorney to craft an estate plan that would come as close as possible to his intentions without violating the law.

One of the biggest pitfalls for those who write their own estate plans is the will execution ceremony.  In New York, the formalities of the will execution ceremony are particularly ritualistic, serving several functions: (1) to ensure consistency, and predictable results, in the inter-generational distribution of wealth; (2) to ensure that sufficient evidence of a person’s intentions is preserved in order to prove his intentions to the probate court after his death; (3) to ease the determination of a person’s wishes at death by channeling those wishes into a will with standardized formalities; and (4) to safeguard a testator (person making the will) against any undue influence or fraud at the time of the will execution.  In serving these functions, even tiny mistakes can be costly.

A lawyer can help guide you through these rituals in a way that a template or book on will drafting can’t.  The pages of a will must be fastened together in a particular way.  The testator must actually read and understand the will and its contents in the presence of witnesses, who must be disinterested (a legal term of art).  If anyone enters or leaves the room in the middle of the will execution, it might affect the validity of the resulting will.  The testator must answer certain questions, and sign the will in particular places and particular times.

Many testators who choose to draw up their own estate plans also omit one very important document which competent lawyers generally annex to a will:  the self-proving affidavit.  A will may be valid without one, but if a will contains this affidavit, it makes it much easier to probate the will.  Hopefully, testators execute wills when they still have a lot of life left to live.  Their witnesses may not be so lucky.  If there is no self-proving affidavit, and witnesses pre-decease the testator, or even just move away, it is much more difficult to successfully probate the will, because the witnesses are unavailable to testify that the will was properly executed.

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