The internet has made a lot of things simpler than they used to be: research, communicating, even shopping. But just because something is simpler doesn’t necessarily mean it is better. One such thing is the creation of legal documents, including one’s last will and testament.
Not very long ago, if Colorado residents wanted to create a last will and testament, they visited an attorney, explained their needs, and had the document drafted. With the advent of the internet, people can now download a will from the comfort of their homes. It’s quicker, and it costs less money than going to an attorney. The websites even say that the wills they offer are valid in all fifty states. How can you go wrong?
There’s a suggestion as to how you can go wrong in the fine print at the very bottom of the home page of a prominent internet legal forms site. It says in part, “(This site) provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies.” In other words: if you want a lawyer, the website will refer you to one if you ask. Otherwise, you’re on your own. If you choose the wrong form, or fill it out wrong, the site has no responsibility.
So, as it happens, there are only two dangers with internet wills. One is that they won’t hold up in court. The other is that they will.
Why an Internet Will May Not Hold Up in Court
Obviously, if someone creates a will, their intention is that it will be valid. If the will is not valid, the testator (creator of the will) has simply thrown away any money spent on creating the will. In addition, the testator’s heirs will likely dissipate more assets of the estate fighting over the validity of the will in probate. The money spent in such a will contest will likely be much more than the cost of having a valid Colorado will drafted by a qualified attorney.
Why might an internet will not be considered valid? There are a number of reasons. Most internet wills are fairly generic, yet they are touted as valid in all 50 states. Probate laws and laws regarding the validity of wills vary, sometimes significantly, from state to state. Thus, there is a very real danger that an internet will drafted for use in New York or California will not contain language needed to make it valid in Colorado.
Another reason an internet will may be invalid has to do with the formalities involved in executing a will. In Colorado, if a will is prepared in an attorney’s office, the attorney will make sure that all formalities required by Colorado state law are observed. For an internet will, there are no such guarantees, making the will vulnerable to challenge even if the language contained within is proper.
If an internet will is found to be invalid in a Colorado court, at best there has been a waste of money, and at worst, the testator’s intentions are completely dishonored. As bad as this is, it can be even worse if the internet will does hold up in court.
Unintended Consequences of Internet Wills
Let’s assume for a moment that a testator has done everything right—found an internet will that complies with Colorado law, and observed all the formalities in executing it that Colorado requires. What could possibly go wrong? Plenty, unfortunately.
An internet will usually does not provide for future events, such as children born after the will is executed. In addition, internet wills are designed to apply to a large pool of people. By definition, they are not customized for your family’s particular needs. For example, if an intended heir has special needs, an internet will may not transfer property in such a way that the heir is still eligible for needed benefits, and the inherited assets will have to be “spent down” before benefits can be received again; in the meantime, the heir goes to the back of a long waiting list for services.
Even if an internet will successfully transfers assets to the intended parties, it may have unintended consequences, most notably negative tax consequences. These consequences may end up costing the heir much more than it would have cost to have a will professionally and properly prepared in the first place. That is to say nothing of the emotional cost of the stress involved.
The bottom line is this: the preparation of an estate plan is the single most important thing you can do to protect your family’s future. Is this really the area in which you want to scrimp to save a few dollars?
If you would like to learn more about drafting a will that is custom-designed for the needs of your family, we can help. Speak to one of the experienced probate and estate planning attorneys at Davis Schilken, PC. Contact us at 303-670-9855 to arrange a consultation at one of our two locations in The Denver Tech Center and Golden, Colorado. We look forward to working with you.