Can You Prepare Your Own Will?

This week our topic deals with what it takes to do your own will and we’re talking with Nolo editor and author Mary Randolph.

QUESTION: Mary, wills deal with two things people often dread – death, and the law. For that reason, many people are wary of preparing a will without an attorney. What’s your response to someone who is fearful of doing it on their own?

MARY RANDOLPH: Well, I certainly understand that people want to do it right, it’s an important document, but the good news about wills is that they’re fairly simple, straightforward documents, and you can do one without a lawyer. They really haven’t changed much in several hundred years; they’re standard documents, and if you have some good materials to help you, you can fill in the blanks and make a perfectly valid will.

QUESTION: Maybe another way that we can understand how wills work would be if you explain what happens if you die without one.

MARY RANDOLPH: That’s right, things get more complicated if you don’t leave a will, because you’re not leaving any instructions for what you want to happen to your property. Or, more importantly, if you have young children, who you want to raise them, and those are two of the key things that you do in a will. Every state has a law under which it will distribute your property if you die without leaving any instructions, and it will go to your closest relatives, and that may be what you want, it may not be what you want. It also has provisions for appointing a guardian for children, if you have young children and you die before they’re adults. And that’s what people really want to take care of; if they have young children they want to name a person who would raise the children themselves if they couldn’t.

QUESTION: Let’s say that a person is sitting down to prepare a will. What type of information should they have gathered before they start writing?

MARY RANDOLPH: Well, it’s pretty basic; you want to think about your big assets – what kind of property you own (make sure you know what you own and what you co-own with someone else, because of course you can only leave what you own). You want to think about who you want to leave property to – do you want to leave it to children, or would you rather leave it to an adult to manage it for the children, for example. So it’s very basic, personal things, just to think about your assets; you may overlook some things that might be valuable, or that might be contentious after your death. Sometimes people can argue about things that aren’t particularly valuable financially but have a lot of emotional significance. So, that’s something you want to think about before you sit down to write down your wishes.

QUESTION: Is it a good idea or a bad idea to speak with family members or friends before preparing a will?

MARY RANDOLPH: Well, it’s never a good idea to surprise people with your estate plan, so whether you talk to people before you make your will, and solicit some opinions, or after you make your plan, and you tell them what your plan is, it’s a good idea to let people know what’s coming, and that’s for a couple of reasons. One is because if people are speculating about what you wished, or why you did something, it can really lead to family disagreements. Sometimes these situations don’t always bring out the best in surviving family members, and if they just don’t understand, for example, why you left a certain heirloom, or more property, to one child than another, which you might have perfectly good reasons for doing, if they don’t understand that, then they might feel bitter or resentful; it might lead to arguments and bad feelings. So, you want to explain to people while you can why you’re doing what you’re doing.

QUESTION: Let’s say I wanted to do this on my own. There are so many websites, software programs, and books available to help you write these documents. I know Nolo has many such products, but how could a person verify that the product they choose is reliable? For example, if I use a program like Quicken Willmaker Plus, how do I know it addresses my state’s laws?

MARY RANDOLPH: That’s a good question; there are a lot of things out there. You want to take a look and make sure that there’s good materials along with whatever forms you’re given to fill out, whether it’s online, or just in a form packet. Make sure there’s help that lets you know what decisions you’re making, that covers all the issues that you care about, and that you don’t have questions. Make sure something does address your state law; Willmaker, for example, one of the first questions it will ask you is what state you’re in, because that has a very big effect on what you own, how you can leave things, your spouse’s rights… it’s a very important thing to know. And if a software package or form that you’re using doesn’t get that information, you’re not going to get results that are really tailored to the law in your state.

QUESTION: Mary, how often do wills need to be updated?

MARY RANDOLPH: Well, there’s no cut-and-dried rule; it’s basically that you need to take a look at your documents when there’s a big change in your life. If your family situation changes, you get married or get divorced, there’s a new grandchild in the family, you sell your house… anything that’s going to make your will out-of-date, then it’s time to take a look. But it isn’t something that most people need to do even on an annual basis. Every few years, it’s a good idea to take it out, take a look at it, and see if you need to change anything. It’s not particularly hard to update a will. The easiest way, because everyone these days does them on computers, is just to make a new will, tear up the old one, and you’re done.

QUESTION: Is it possible that a law could change so that my will becomes invalid? If so, how would I learn about that kind of change?

MARY RANDOLPH: Very unlikely that any law would make your will invalid. It’s possible that laws could change in a way that you would want to change something in your will. For example, if you move to a different state that has different property laws affecting spouses, for example, community property state versus other states. It’s possible that you might want to reassess your will then, but nothing is going to come along and just make it invalid.

QUESTION: I read that Warren Burger, the former Chief Justice of the Supreme Court, wrote his own will, but he didn’t give any power to his executors, and didn’t provide for estate taxes, and these errors cost the estate thousands of dollars. How does a person preparing their own will know whether they’ve made the right financial decisions?

MARY RANDOLPH: Well, it’s true that Warren Burger scribbled out a will on a piece of paper, and didn’t really take into account some things he should have taken into account. Most people don’t owe estate taxes; 99% of the estates don’t pay estate taxes, so that’s not anything most people have to worry about, but you do need to make sure you have some standard provisions in your will. And I’m sure Warren Burger knew lots of lawyers that could have helped him. You don’t even have to know a lawyer these days, you can use something like Willmaker, it’s got all the standard provisions, so it lets you know that you’re not leaving out anything crucial; it will prompt you, and ask you questions. So by the time you get done you should feel that you’ve addressed all the issues that you need to.

QUESTION: I have a few questions about the Quicken Willmaker Plus product. If it’s made by Nolo, why is it called Quicken Willmaker Plus?

MARY RANDOLPH: Well, Quicken, as you probably know, has provided financial software, personal finance software, to people for many years now, and they approached Nolo and asked us to provide the legal content. We’ve been publishing books and software on legal matters for more than thirty-five years, and they asked us to provide the content for our will-making program, so that’s why we teamed up with Quicken.

QUESTION: From what I understand, the program has a web update feature, which automatically goes to the Nolo website, and downloads any changes in the laws into the program. How do you keep the software current each year?

MARY RANDOLPH: Well, our in-house lawyers are looking at Willmaker every year; we put out a new version every year that addresses any legal changes in the fifty states, so we are on top of it. Luckily, the law on wills doesn’t change usually each year, but if there’s something people should know about, or if there are some tips that we’d like to give them, we publish a new version every year. In the mean time, if there’s anything that changes that we think people should know about, we put it on our website, and the Willmaker software has a feature where you can go directly from the software to the web update page on Nolo.com, so you can find out about anything that you might need to know