January 9, 2019

There are inexpensive fill-in-the-blank Last Will and Testament forms that may be purchased online.  So what is the benefit of retaining an attorney draft a will?  As detailed below, an attorney can add value by making sure the will is clearly drafted in accordance with the testator’s wishes, and that the will is executed in accordance with applicable laws so that the will is valid and reduce the risk of a successful challenge.

First, if the will isn’t signed properly it may be defective and/or subject to challenge.  An experienced trusts and estates attorney can supervise the will signing ceremony to ensure that the statutory requirements are met.  If necessary, the attorney can later testify in court that the requirements were met.

Second, the testator (i.e. the person preparing the will) may need an attorney to ensure that his/her wishes are carried it out in the document.  When it comes to estate planning, there is no “one-size-fits-all” solution.  A form is a good starting point but the testator must tailor the form to comport with his/her wishes.

Third, there may be considerations outside the form, such as long term disability or estate tax implications that an experienced trusts and estates attorney can spot.  An attorney can take the time to listen to the testator’s concerns, ask appropriate questions, tailor the document to meet with the testator’s approval, and explain the document in “plain English” before the testator signs.

Fourth, to state the obvious, by the time a problem in an online form will is discovered, it may be “too late” because the testator is incapacitated or dead.  In such event, state law may govern which may or may not be consistent with the testator’s wishes, and expensive probate and guardianship proceedings may be necessary.

Fifth, there are many ways to make a mistake on a Last Will and Testament or Power of Attorney (POA).  If the testator appointed an agent pursuant to a POA that is later deemed invalid and the testator is then incapacitated or deceased, an expensive and time consuming guardianship proceeding may be necessary.  If the testator appoints a trustee/beneficiary who predeceases the testator and there is no backup trustee/beneficiary then there may be costly and time consuming implications.  Having an attorney draft the will and POA and supervise its execution can reduce the risk of future problems.

Sixth, an attorney can retain the original will in a safe so that when the time comes, the will is easily accessible.  While an individual may put the will in a safe deposit box at a bank, access to that box may be delayed by probate.  Even the most organized person can lose the will in a move or the will may be destroyed e.g. by fire.

For these reasons, and a host of other reasons, it is a good idea to have an attorney draft a will.  In addition to the will, the attorney can prepare the Power of Attorney, Health Care Proxy, Living Will, Self-Proving Affidavit, Trust Agreement and related documents.

If you have any questions about pet trusts, estate planning or any other trusts and estates related issue, please do not hesitate to call us at (914) 338-8050.

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The Law Offices of Keith R. Betensky, Esq.
The Empire Building
26 Village Green, Suite 4
P.O. Box 22
Bedford, New York 10506-0022
(914) 338-8050
keith@betenskylaw.com
www.betenskylaw.com