‘DIY’ your estate plan at your peril

Can you draw up your own will?

Sure – and while you’re at it, why don’t you take out your own appendix, do a complete engine overhaul on a 747 and come up with a cure for cancer?

OK, I exaggerate – a little. And I admit I’m probably slightly biased on the issue of people relying on “DIY” or off-the-shelf wills.

As a practicing attorney in the area of estate planning and elder law, I like to think that those years I spent in law school (not to mention the thousands of dollars in tuition I spent), my attendance at continuing legal education classes and my years of experience in the practice of law count help me provide clients with something of value … something they can’t get in a $10 fill-in-the-blanks will kit from an office supply store or off the Internet (Bob Shapiro, I’m lookin’ at you – but more about that later).

But I’ve also learned over the years that some people, for whatever reason, have the same kind of aversion to paying for legal services that they do to, say, eating asparagus. They just find it distasteful. It may even activate their gag reflex.

If you test positive for Attorney Allergy, I offer my condolences, and a few tips to confirmed “DIY-ers” to help alleviate some of the stress that will be visited upon your heirs, yea, even unto the third and fourth generation:

· First of all, wills in Washington, like nearly everyplace else, require two competent witnesses, a concept most people are familiar with. But if your “DIY” or off-the-shelf effort leaves it at that, you could be creating unnecessary headaches for your heirs after you have slipped the surly bonds of earth to touch the face of God. If the will doesn’t also include an Affidavit of Attestation – acknowledged by a notary who witnesses the witnesses’ signatures – it is not “self proving” and cannot be admitted to probate in the Superior Court without additional evidence being offered. Such an affidavit can be executed when the will is offered for probate (meaning, after you die), assuming the witnesses are available. If they aren’t, your personal representative (the person you name to administer your estate) may have to jump through all kinds of hoops to establish the validity of the will. Good luck with that.

· Do you want your personal representative to be able to act without court intervention or posting a bond? If so, the will should state that. Your personal representative can petition the court to obtain nonintervention powers and waiver of the bond – but may have to hire a lawyer to do so. And you’re the one who hates the idea of paying a lawyer … remember?

· Finally, does your plan of distributing your property include a “Plan B”? What happens if a beneficiary you name to receive part of your estate dies before you do? Does that distribution get passed down to his or her heirs? Or does it get put back into the pot and distributed pro-rata to the other beneficiaries you name in your will? Failing to account for contingencies could leave you with results you didn’t contemplate, or desire.

I promised I’d get back to Mr. LegalZoom. Bob Shapiro. If he was good enough to get O.J. off, isn’t he good enough to do your will?

Here’s the thing – when you get legal documents from an online source such as LegalZoom, you’re getting just that – legal DOCUMENTS, not legal REPRESENTATION. Bob is not your lawyer. He may have battalions of attorneys tapping out form wills and trusts 24-7 in some boiler room operation. But you take a risk that the documents such a service provides are actually the ones you need – and contain the provisions that will carry out your wishes. And if something goes wrong down the road, neither Bob nor his minions – or their malpractice carrier – will be there to bail you out. Because, as I said, Bob isn’t your lawyer – he is a document provider.

Now, in the interest of full disclosure, I have to admit that, yes, I have seen a few form or “off-the-shelf “wills come into my office that actually accomplished what the “testator” – the person making the will – intended. But I have also seen wills with omission and ambiguous clauses that created all manner of mischief to be undone. At that point, you’ve got the grandson and the nephew ready to square off on cage match over who gets the John Deere tractor or the Civil War-era flintlock pistol. The battle is on, and who ya’ gonna call?

Well, unfortunately for you, at that point you’re not going to be in a position to call anyone, being deceased and all.

But my guess is your heirs – if they have an aversion to stepping into that cage – will start letting their fingers do the walking, and likely are going to end up talking to someone like … me.

Sorry about that.

As they used to say on the Fram oil filter TV commercials, “Pay me now or pay me later.”