by Jonathan A. Nelson
I have written previously about electronic estate plan documents. Another question I sometimes get is whether wills drawn up through online sites or consumer software are legal.
There are several layers to this answer, largely working backwards from what needs to be done with the document (and bearing in mind that these answers are specific to Virginia, although many states have analogous laws).
With regard to the legality of the will, there is not a lot of mandatory language for a document to be a will (I speak specifically as to Virginia, but this is generally true across the United States), other than there being a definite gift intended to take effect on death. I have seen even this messed up in print-your-own wills, but it is the exception.
For the will to be admitted to probate and an executor sworn in, there are certain formalities for the signing of the document which go beyond mere notarization. My observation is that notaries, while used to handling other kinds of documents, frequently make errors through inexperience with trying to administer a will signing. Virginia has a “savings statute” (Va. Code § 64.2-404) that allows many flaws in the signing to be forgiven by a judge, but this requires filing a suit, and anyone who thinks they have an interest in the estate can object. A recent example I was involved with required about $6,000 in litigation costs for a nearly unopposed matter because of the hoops that needed to be jumped through; for contested matters, the bill goes up steeply.
Even if the will is executed properly and admitted to probate efficiently, the software doesn't usually stop the user from making a mistake in the terms and language. Problems with online wills I have seen include:
1. Unfamiliarity with practicalities of the probate procedures that will apply, which may result in impractical administration, impossible gifts or failed gifts, or fiduciaries without the authority to act in a necessary or expected way;
2. Passing assets in inefficient ways, whether this involves unnecessary probate, multi-step transactions that have tax consequences at each step, or depriving a fiduciary of the resources to maintain an asset;
3. Failing to provide handling specific to these beneficiaries, including passing assets to minors or for the benefit of people with physical or mental limitations; and
4. Unintentional omissions, because the software won’t have a good way of asking you whether you thought of everything. As one example, I was involved with an estate where the decedent used an online will program, incorrectly assuming that his widow would automatically be the first executor and he was just entering a list of alternates into the form. Because he didn't list his wife at all as an executor, we ended up having to track down and get waivers from his sister, his mother, his college roommate, and a friend in New York he hadn't talked to in 20 years before she could qualify on the grounds of being a beneficiary.
In the short term, writing a will with an online program may be convenient, quick, and sometimes less expensive; however, they frequently have speedbumps or full roadblocks between what they actually do and what you wanted, and fixing those problems can quickly cause significant expenses, delays, and inconvenience for your loved ones.
Do attorneys sometimes make mistakes? Yes. But a personal relationship with an attorney experienced in probate and estate planning in your state and who knows your family’s needs reduces the probability, helps avoid the many pitfalls of estate administration, and provides results that are effective and sound. Attorneys also have professional oversight that a website lacks.
Many things in life can be fixed later, but a will is out of your hands after you are gone.
Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.
The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.