Can I Draft a Will Without a Lawyer?
Getting a lawyer’s help can avoid problems down the line
on November 30, 2022
Updated on January 29, 2023
Having a last will and testament is important for several reasons:
- It makes your final wishes known
- It directs how your property will be distributed when you die
- It gives your loved ones clarity and helps avoid probate disputes
- It names a guardian for minor children
- It appoints a personal representative to protect your estate’s best interests
Perhaps most importantly, having a will gives you peace of mind that your loved ones will be provided for when you die.
So, how do you create a will that is legally valid and enforceable?
And do you need a lawyer to create a will, or can you do it yourself?
The answer to the second question depends. As a baseline, you are not required to have a lawyer to create a will.
“There are certain things I believe folks can do just fine without a lawyer, says Maryland estate planning attorney Jeremy D. Rachlin.
“For example, here in Maryland, we make it pretty easy if you want to start a limited liability company (LLC) and register it with the state. I think many potential clients could be just fine setting up a simple LLC on their own.”
However, when it comes to preparing a will, Rachlin says, “I absolutely believe that folks should have the assistance of a lawyer.”
Why is that?
“There are too many provisions that can be lost or overlooked or that are state-specific. Over time, I have seen a fair amount of deficiencies and litigation arise out of do-it-yourself estate planning,” he says. “Most estate planning attorneys offer a basic estate plan for a competitive fee. And this is certainly one area where the cost of cleaning up the mess will far exceed the cost of having legal assistance on the front end.”
So, if possible, it’s wise to get the assistance of a lawyer in preparing a will. This article will cover what needs to be included in any will and the issues you’ll want to discuss when meeting with a lawyer.
How To Write Your Own Will
If you choose the do-it-yourself route, there are some key things you need to know when writing a will.
First and perhaps most importantly, the legal requirements for a valid will vary from state to state. So, before you write your will, you should check your state’s estate planning laws and become familiar with the requirements for a will. Understanding the legal requirements is where consultation with a lawyer can be enormously helpful.
Despite the variation between state requirements, there are a few things that are generally required regardless of where you live:
- Age. Generally, you must be at least 18 years old to make a legally valid will.
- Sound mind. You must have the requisite mental capacity to create a will. This basically means you understand what the will says and directs others to do.
- Intent. The will must show your “testamentary intent” or what you want to happen to your estate when you die.
- Sign the will. You must put your signature on the will along with the date.
- Witnesses. There must be witnesses present when you sign the will. State laws vary but generally require two or three witnesses to be present. The witnesses can’t be beneficiaries of the will (such as your spouse or child). The witnesses also need to sign and date the will.
Generally, you don’t need a notary public to make a will valid.
However, there is a situation where getting notarization is needed: the self-proving affidavit. A self-proving affidavit is a document in which your witnesses attest to the validity of the will.
When the will goes through probate (the legal process of proving your will), your witnesses’ attestation in the affidavit can help the process go more smoothly.
If you get your witnesses to sign a self-proving affidavit, you’ll need to get it signed by a notary.
There are some additional considerations to note:
- Holographic will. “Holographic will” is a term for a hand-written will with no witnesses. It’s wise to avoid a holographic will by planning ahead. Only about half of the states recognize the validity of holographic wills. In states that do accept them, it generally takes more evidence to prove the validity of a holographic will in probate court. It must be proven you wrote the entire will yourself and that it was signed and dated when you were of sound mind. Holographic wills tend to lead to more disputes and challenges in the probate process.
- Safe place. Make sure to keep your will in a safe place where your appointed personal representative or executor will know where to find it.
- Making changes to the will. If circumstances change and you want to alter your will, you can add amendments to your will called codicils. The requirements for creating a valid codicil are the same as for creating the original will, including the witness requirements.
A great way to start the process of creating a DIY will is by finding an online will template for your state.
What to Include in Your Own Will
There are a few key things you should include in your will:
- Name a personal representative. Also known as an “executor,” your personal representative is the person who will file your will with the probate court and guide it through the probate process, ensuring your wishes are fulfilled. Note that an executor is different from a power of attorney, which is a personal representative authorized to make healthcare-related decisions in the event you become incapacitated.
- Designations. You will name your beneficiaries in your will. A beneficiary is someone you want to receive a portion of your assets when you die. Estate assets include everything, from real estate to personal property to financial assets like bank accounts and stocks. Note that some accounts, like retirement accounts and life insurance policies, already have beneficiaries named on the account.
- Choose a guardian for minor children. If you have children under 18 years of age, it’s essential to name a guardian for them in the will. A guardian is a person who will take care of your children’s well-being until they reach adulthood.
When Do You Need a Lawyer for a Will
As noted above, it’s wise to get a lawyer’s help in creating a will to make sure you don’t:
- Leave out important provisions
- Overlook state laws
- Create a deficient legal document
- Risk unnecessary legal expenses in the future
If your estate is complex, consulting with a lawyer is even more advisable. Signs that your estate plan is complex include:
- You anticipate family disputes in the probate process
- Your estate is subject to state or federal estate taxes
- You own a business
- You want to create living trusts or other probate-avoiding estate planning documents
Even if you have a relatively simple will, it’s best to speak with an estate planning lawyer if you have any questions.
Questions for an Estate Planning Attorney
Most estate planning lawyers provide free consultations for potential clients. This means it won’t cost you anything to meet with a lawyer and get legal advice about your estate.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- What should I include in my will?
- What’s required for a legal will?
- How do I update my will?
- What other estate planning documents should I consider?
- What is intestate succession?
- What state laws should I be aware of?
Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship.
Look for a lawyer specializing in wills in the Super Lawyers directory for legal assistance.