E325 Do You Need a Lawyer to Make a Will?

Our Solo Agers friends often ask this when they’re ready to name me executor in their will. We support well-done DIY wills and anything that helps make your plan as frictionless as possible. Some kind of plan is almost always better than no plan!

So, do you need a lawyer to make a will? No, we’re not aware of any state that requires a lawyer to make your will. We do nonetheless recommend that our Solo Agers at least hire a lawyer to supervise the signing. Here’s why:

Signing ceremony technicalities

A signing ceremony sounds like a long, drawn-out event, but it could last as little as 15 minutes. Still, there are many technicalities to follow, or else the will may be invalid.

Just a few examples, the person making the will (the testator) has to make a proper declaration in the will. The pages of the will must also be stapled together, or else there is a potential for page-swapping. Lastly, to demonstrate that the testator is competent to sign a will, lawyers often chit-chat about current events with the testator. If testimony is ever needed to prove that the testator is competent, then the witnesses can refer back to that conversation.

If any of the technicalities go wrong, then the will may be invalid. Yes, DIY services provide detailed instructions for drafting your will, but most people don’t follow instructions to a T (or even read the instructions). It’s easy to miss a step and invalidate the whole will.

It’s much easier to get an experienced attorney to supervise the signing. It’s also cheaper than hiring an attorney to draft your entire estate plan.

Lawyer-supervised presumptions

In many states, the probate court will give the benefit of the doubt if the signing was supervised by a lawyer.

For example, the court is more likely to accept a self-proving affidavit signed by your witnesses, instead of requiring the witnesses to appear in court to testify. Suppose you die 15 years later…tracking down the witnesses, getting them to agree to come to court, and having them accurately recollect your signing ceremony would be very hard. There is no guarantee that they will remember that day or even still be alive.

Without the lawyer supervision and the self-proving affidavit, it may be harder for your executor to probate your estate.

Best will witnesses

DIY wills often use subpar witnesses. It’s natural to want to ask family and friends to witness, because they are close to you. Using a witness who is named in the will or who could potentially inherit your estate creates a conflict of interest. Their testimony as a witness won’t hold up well in court because they have beneficial interest.

But, it’s also not the best idea to grab a passer-by as a witness (UPS delivery person, doorman, bank teller). If you don’t even know the witness, chances are it will be hard for your heirs to find them if ever needed. Sometimes the address they provide is the physical address where they signed!

For these reasons, lawyers will provide their own experienced witnesses (paralegals, other staff, the lawyer’s spouse, etc.). These people have witnessed wills many times before and can give good testimony if needed.

If you decide to do your own will, at least have the signing supervised by an experienced attorney. For more answers to your estate planning questions, click the link below to receive your free electronic copy of my book, “The Solo Ager Estate Plan.”