Dear Dale: My wife and I had wills drawn up years ago when our children were minors. As family circumstances have changed, we have discussed many times the need to revise our wills. I'd like to know why I can't revise our wills without the help of an attorney. What are the pitfalls of doing it on our own?
Answer: The major problem of drafting your own will is that you could create a document that doesn't accomplish any of your intended objectives. While it's easy enough to get your hands on fill-in-the-blanks form wills, there are a number of ways to make mistakes that would render the will invalid.
Let me provide just a few scenarios that might not seem particularly significant to a non-lawyer but could invalidate a will, or key provisions of a will.
One very easy way to go wrong is to not have your signature on the will properly witnessed. Let's say Bill pulls a document off the Internet and uses it as a template for a will. He specifies what he wants to have happen with his estate when he dies, he signs it, and files it away. Without knowing it, Bill just blew it because he didn't have his signature properly witnessed. His will would not be valid even if his intentions were clear.
In Ohio, a will is not valid unless the signature is witnessed by two people. That sounds easy, but there are ways in which even that seemingly simple process can go wrong. Let's say Bob signs a will in his hospital room in front of his friend, Sally. A minute later, another friend, Ted, comes in the room, and Sally says, "I just saw Bob sign his will - we need your signature as a witness." Ted does as he's told and signs the will as a witness.
Under that scenario, the will is invalid. Under Ohio law, at least two witnesses must see the testator - the person making the will - sign it or the testator must acknowledge that he has signed the will to the witnesses who are in his "conscious presence." In this situation, Ted did not see Bob sign, nor did Bob ever acknowledge his signature on the will.
Finally, let's stick with the same players in the preceding example, except this time Sally and Ted are Bob's children. Assume that the will is properly witnessed and signed by Sally and Ted. In this case, the will is valid, but any specific bequests to Sally and Ted will be void because they acted as witnesses. That's something that might not occur to a non-lawyer.
I've provided just a few examples of the rules that must be followed for a will to be valid. While you may be able to put together a valid will on your own, it doesn't seem to make sense to take the chance that your wishes won't be honored because you failed to follow a rule that may seem minor to you but is still the law.
If you're going to go to the trouble of making a will, presumably you have given some thought to how you want your estate handled. Doesn't it make sense to ensure that your wishes are followed and that your family members don't have to deal with additional legal headaches?
Most lawyers don't charge high fees, at least in relative terms, to prepare a simple will. Obviously, the fees will increase as the issues become more complicated, but wills usually are fairly straightforward. And a lawyer reviewing your estate plan may spot issues you haven't considered, such as whether you should set up a trust.
So, consider hiring a lawyer to prepare your will. Whatever you pay will be worth the peace of mind of knowing your estate will be handled in accordance with your wishes.
Dale Emch practices law at the Charles E. Boyk Law Offices, LLC, in Toledo. In his column, he will discuss general legal principles and answer readers' questions. Neither Mr. Emch nor The Blade present or intend his column to be taken as legal advice. Readers seeking legal advice should consult with an attorney. Readers should send their questions to Mr. Emch at firstname.lastname@example.org or Dale Emch, 405 Madison Ave., Suite 1200, Toledo, OH 43604. His blog is at toledocaraccidentlawyerblog.com.
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