February 24, 2024
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February 24, 2024
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Why You Really Don’t Want an Online Will

Times are changing. Almost everything today is automated or on the internet. We buy our shoes at Zappos, our groceries at Fresh Direct, our rooms on Airbnb and everything else on Amazon. Many jobs, including attorneys, are going to become obsolete within the next 20 years due to automation.

Amazon’s robot army (i.e., the robots Amazon uses in their warehouse fulfillment centers) is now at 45,000! Those are 45,000 jobs that could have gone to hardworking employees, but those tasks are now being handled by robots instead. Let’s face it, robots don’t need healthcare, they don’t take breaks and they don’t ask for raises.

In the estate-planning context, there are hundreds of websites devoted to helping you create your plan online. I visited a few of these websites to see the quality of the documents produced. The truth is, many of these websites are not completely terrible. They are simple to use, produce documents instantaneously and, most importantly to many consumers, are very cheap.

However, if you have an online will, or if you are contemplating getting a will online, there are serious issues of which you must be aware.

The most common problem with buying (or not buying as the case may be) an online will is that even when you put the documents together, they are not valid until they are executed (i.e., signed) the right way.

A couple of weeks ago I was sitting with a friend in my home and asked him if he had a will. He enthusiastically said he did have a will and he got it online—for free! I was thinking about writing an article about online wills and so I asked him how he “executed” the document. He said he used his finger online, signed his name and thought he was good to go. He’s not.

When you sign your documents, there are certain things that must be done in order to ensure that your will can be accepted in your county’s Surrogate’s Court. You need witnesses, a notary and a special affidavit attached to your will.

Many of our estate litigation clients have come through our doors because of online or form wills. Their parents thought they were saving money; however, the Surrogate’s Court did not accept the documents they used because they were not executed properly. They paid virtually nothing for their online forms, but their heirs paid almost $10,000 to use the will in court.

Moreover, if your estate has any level of sophistication, an online will might make things worse for your heirs. Quite simply, if your estate is over $1-2 million, inclusive of retirement accounts and/or life insurance, you’re not going to want to get an online will. There are many reasons for this, but, to name an important one, many of these online wills do not have adequate trusts for children or grandchildren (if they have trusts at all).

Ask yourself, would you want to leave $1 million to your 18- or 21-year-old child? How can you protect your children from themselves? There are countless examples of young children getting too much money too quickly (see, e.g., Whitney Houston’s daughter). What is the best way to protect your children from spouses or creditors? What happens if you have a large estate and one of your children predeceases you? Your will should have some level of sophistication if your estate warrants it.

Similarly, if your children might not get along, you most certainly do not want to draft a will online. You are inviting conflict between your children. I’ve see children fight over $20,000 the way they fight over $2,000,000. Even if you properly execute your online will you are making it highly likely that a fight will ensue. This is especially true if one of your children is helping you as you age.

However, if you draft a will with an attorney, the attorney can vouch for your “capacity” (i.e., your ability to execute the will) and your intentions, which makes an argument less likely. Or, even if there is an argument, the attorney’s presence will help ensure your wishes are carried out.

Lastly, and perhaps most importantly, an online will does not account for the counsel in the attorney-client relationship. There have been many times when people have come to see us thinking one person could fulfill a certain role in their estate plan, but upon reflection with one of our attorneys, the client understood that their initial decision would have been a huge mistake. Attorneys are called counselors because we provide counsel to our clients, counsel that an online form will never provide.

I could give you another four reasons where drafting a will online is not a good idea (especially in the area of tax planning), but I do not wish to belabor the point. Perhaps there will come a time in the next 20 years when getting an online will is not a terrible idea. However, we are certainly not there yet, which is why you really don’t want to get a will online.

By Alec Borenstein

 Alec Borenstein, Esq., an estate planning attorney with Borenstein, McConnell & Calpin, is a Teaneck resident with offices in Springfield and Brooklyn. His firm’s website is bmcestateplanning.com. If you’d like an estate planning consultation in the comfort of your own home or office, please email [email protected] or call 908-236-6457.

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