Estate Planning | Questions about Online Wills?
Estate planning attorneys are often asked, “Why can’t I just use a will I created from the Internet?” It is true that it will probably be cheaper than hiring an attorney – in the beginning, at least. Once the will is filed in probate court, however, it could be much more costly.
When it comes protecting their assets and their children, most people want to make sure their wishes are followed. Even if on-line wills are state specific, there is little or no guidance when preparing such documents, and the consequences of using these documents often is not what was intended.
Problems with Online Wills.
Limited Flexibility For Personal Representatives
If a will does not give the personal representative flexibility with regard to the collection of assets, the sale of real estate or the management of assets in the estate, then the personal representative will have to follow statutory requirements which are often very conservative. Although this may seem prudent, a testator (the person making the will) usually selects his or her personal representative carefully and, therefore, will usually have chosen a trustworthy person. The existing laws granting powers to a personal representative will not give them much freedom, which can increase the time and money spent on a probate.
On-line wills may not allow alternate personal representatives to be named in the event that the first choice is deceased or declines to serve, and there may be no guidance for who should take over. If none of the people named as personal representative is willing or able to act, the probate court will appoint someone else. A probate court may appoint a neutral third party (such as a trust company) to serve as the personal representative, and that party’s fees may be higher than expected.
Guardianship Of Minor Children
A big reason that parents have wills prepared is to choose who will become the guardian of their young children in the event of their death. An on-line questionnaire may limit parents’ choices regarding who becomes the guardian of minor children. For example, it may require that parents choose an individual as a guardian rather than a couple. Additionally, it may not ask if there is anyone that should be excluded from guardianship.
Guardianship Of Minor Children
A primary concern of individuals in second marriages is making sure their current spouse is taken care of while also ensuring that the children from the first marriage eventually receive a share of the assets. Without proper planning, spouses in a second marriage may unintentionally end up in a situation where their spouse inherits most or even all of the estate, which could then be distributed however he or she chooses, and children from a first marriage may end up with little or nothing. Additionally, if a testator desires to include step-children as beneficiaries, this must be clearly stated in a will or they will be excluded. On-line wills are usually ill-equipped to handle the complexities of second marriages.
A self-proved affidavit is a document that can accompany a will. It allows a probate court to easily accept it as the true will of a person who has died. The affidavit is signed by two witnesses, under penalty of perjury, who observed the signing of the will. A self-proved affidavit makes it unnecessary for the witnesses to appear in court to affirm the will’s validity once it has been filed with the probate court. The affidavit can potentially save beneficiaries and witnesses considerable inconvenience. It also gives a will an extra layer of authentication that can help beneficiaries avoid a long and costly probate process. Online wills may lack a self-proved affidavit, requiring the personal representative to track down the witnesses to the will years later if there is a will contest.
Most online wills do not include a no-contest clause. A no-contest clause is a provision written into a will that is designed to prevent heirs from contesting the terms of the will by providing that if an heir challenges any provision of the will, then that heir will get nothing. No-contest clauses are not always upheld, and therefore should not be relied on as the only way to discourage heirs from challenging the provisions of an estate plan. However, in a specifically-tailored estate plan, there may be other ways to limit the distributions to an unfavorable heir.
On-line wills often fail to adequately address the contingencies of the death of a child or the birth or adoption of a child that occurs after the will is signed. For example, a will might provide for distribution of a deceased child’s share to that child’s “heirs” upon his or her death, but does not specify the allocation. If that child had a spouse and a minor child, both would be “heirs,” yet many people would prefer that a grandchild receives a greater amount than a daughter-in-law or son-in-law. Also, an on-line will may not clarify how an estate is to be divided if the testator were survived by living children and the minor children of a deceased child. Furthermore, an on-line will may be missing a clause that would direct the disposition of assets if there is no surviving spouse or descendants (a “family calamity” clause). Other problems may arise with on-line wills if the provisions of the will include individuals’ names instead of generic terms such as “descendants.”
Important clauses that may be missing in Online wills.
In many cases, on-line wills do not include a spendthrift clause, which can limit a beneficiary’s ability to pledge a future distribution under a will to a third party. If a beneficiary under a will tries to do so and there is a spendthrift clause in the will, then the personal representative cannot honor such a pledge, and will instead make the distribution directly to the beneficiary, regardless of any contracts that the beneficiary entered into. The purpose is to prevent a beneficiary from using a potential distribution as security wherein creditors would be able to directly claim an interest in the assets distributed by the will or force the personal representative to make payment directly to the creditor.
Without an apportionment clause, taxes will come out of each beneficiary’s share on a pro rata basis, which will be problematic if certain named beneficiaries were intended to be relieved of such taxes. For instance, if an individual purchased a life insurance policy and named his or her spouse or a certain child as the beneficiary with the intention that the beneficiary would receive the full payout. However, an apportionment clause could cause inequities if an estate is subject to estate taxes and one child received property outside of the will in which another child did not share. For example, if only one child is named as the beneficiary on a life insurance policy, this clause would cause the other child’s inheritance to be reduced to pay half of the tax on the insurance proceeds. Because apportionment issues are very specific to an individual’s circumstances, it is beneficial to discuss the inclusion of these clauses with a professional, which is likely not available when preparing an on-line will.
Surviving Spouse Clauses
If both spouses die as a result of a common accident, but one survives a bit longer than the other, a probate may be required for both spouses on the same assets unless the will has a surviving spouse clause. Furthermore, if the wrong spouse is deemed to have survived, it may limit post-mortem estate planning options. A surviving spouse clause typically states that the wealthier spouse died first, which may allow for easier administration of the estates and may allow the heirs greater ability to preserve the assets of the estates.
In some states (including Minnesota), if properly referenced in a will, an individual can direct the distribution of tangible personal property by a separate handwritten or typed document as long as it is dated and signed by the individual. Such a provision is very useful if there are items of family significance that cannot be divided or shared by all of the children, and it allows for changes without having to re-draft or amend the will.
Testamentary Trust Clauses
A testamentary trust clause is included when a beneficiary is a minor or the testator wishes to hold the assets in trust for a certain time for the beneficiary after the testator’s death. Without a trust, the assets may be distributed to a beneficiary before he or she is able to manage those assets responsibly. Because these clauses require detailed information necessary to set up the trust upon the death of the testator, they are not usually included in on-line wills. Furthermore, due to the intricacies of these provisions, the advice of a professional is strongly recommended.
There may be occasions where an on-line will can suit a person’s needs, such as when a person has no children and few assets. The problem, however, is that what you don’t know can hurt you. On-line wills may include inadequacies or mistakes that do not become evident until after you die, and the people who are left to handle those mistakes are usually the same people that your will was intended to protect.
All readers are advised to consult a qualified professional before embarking on any course of action with legal implications.
For more information about getting started with your estate plan or to learn more about our estate planning services, please feel free to contact us at (952) 432-3136.