Online tools put will-writing in reach for most people – but they’re not the end of the line

January 9, 2022 Allison Anna Tate, The Conversation

State law is the bottom line

Increased accessibility, however, is only part of the story. One fundamental problem with online wills is that they are not valid unless they are properly executed according the state probate rules. Simply filling out an online form is not enough to create a valid will. Each state has specific rules for determining whether or not a will has been validly executed. For the most part, these rules require that the will be in writing, signed and witnessed by two people.

These requirements focus on the physical – physical documents and the physical presence of witnesses. The writing and signature requirements generally mean that a person must print out the online will and sign a hard copy, and the witnessing also needs to be done in person. States have begun to consider moving toward electronic wills, spurred on mostly by the new and demanding conditions of physical distancing brought on by the COVID-19 pandemic.

Some states adopted temporary emergency orders authorizing electronic wills during the first phases of the pandemic, but most states have yet to fully adopt electronic wills or remote witnessing. Something to check, then, when considering an online will is whether or not the program or template is state specific and clearly explains what further steps will be needed to validly execute the will after the document has been prepared online.

Covering the what-ifs

Something else worth investigating for those considering online wills is what kind of questionnaire the program provides. Estate planning, as I tell my students all the time, is about matching up your things with the people you want to inherit them.

Good will-drafting is also, however, about imagining worst-case scenarios, thinking three steps ahead and writing contingency plans into the document. Who gets that ugly landscape painting if Aunt Bridget is already dead when you die? Does Cousin Jamal get any replacement value if the stock he was supposed to receive through the will was sold? What happens if the family members who were supposed to inherit the bulk of the estate all die in an unexpected avalanche during a ski vacation?

Accordingly, those in the market for an online will should make sure that the online program offers a detailed questionnaire to guide them through the strange and sometimes gruesome world of unlikely but incredibly important “what-if” scenarios.

Things can get complicated

Finally, while it might be obvious, online will templates are best for simple estates. If you have real property in more than one state, if you have a complicated family structure involving multiple marriages and sets of children, if you have a family business that will be passed down – in all these situations you might consider consulting an estate planner. That person can give you advice on how to deal with these more legally complicated and financially sophisticated situations that online will templates are not necessarily set up to accommodate.

Ultimately, then, you may need to get out of bed to have your will witnessed, and you may need to leave your house to consult with a lawyer about complicated assets. But the good news is that with online will-writing programs you can do a lot of the groundwork at home, drinking coffee in your pajamas.

Allison Anna Tate is a professor of law at the University of Richmond.