Nearly half of all Americans over age 55 don't have a will, and many Americans believe they can't afford to hire an expensive attorney to draft their will. But not everyone needs the same kind of will or the same kind of attorney. In fact, most Americans don't need an attorney at all. It all depends on what you are trying to accomplish with your will and how complicated your estate is.
Jump ahead to these sections:
- What to Consider or Take Note of Before You Choose a Service or Attorney
- Should You Use an Attorney, Complex Estate Planning Attorney, or Online Will?
Before we get started, it’s important to note that during the COVID-19 pandemic, many estate planning attorneys are accepting telelaw clients. All you have to do is book an appointment or consultation, which is free with Cake, and you’ll be on the way to creating a legal will over video chat, email, and phone.
What to Consider Before You Choose a Service or Attorney
The purpose of a will is to pass on property to others when you die. But you might not know what to include in it until you take account of all of your assets and the people you may want to leave them to.
Assessing this can help you decide whether you should use an online will service, schedule an attorney consultation with a general practitioner who has some experience drafting wills, or retain a more expensive attorney who specializes in estate planning.
Keep in mind that your will only authorizes the passing of property that's not passed on automatically at death through another legal instrument. Property automatically passed on is called payable-on-death or non-probate assets. These assets include things like life insurance benefits, money left in joint bank accounts, and property held in trusts.
Should You Use an Attorney, Complex Estate Planning Attorney, or Online Will?
- Basic estate planning attorney
- Attorney who specializes in complex estate planning
- Online will services
What you choose will depend on quite a few factors, like how complicated your estate is, tax implications, and your budget. We will walk through each of these options below.
1. Basic estate planning attorney
It may be a safe choice to visit with an attorney who practices law and makes drafting wills one part of their practice. With just a brief consultation, a general practitioner can assess your circumstances and either advise you on any legal issues or simply draft a will for you.
Although any work performed by the attorney will cost a fee, it is usually reasonable (anywhere from $300 to $3,000), depending on the service, and a flat, transparent fee.
The benefits of consulting with an attorney are that you can get specific legal advice, ask questions, and feel more confident that your will is going to accomplish what you want it to. They can also provide estate, income, and capital gains tax advice.
The downside is that this takes time and money. Although you may take the attorney’s advice and draft the will yourself, most people who see an attorney will have the attorney draft the will for them.
It makes sense to use a basic estate planning attorney consultation when…
- You have questions about your will or its consequences: To have a valid will, you must follow very specific rules regarding things like where to sign, how many witnesses to have, and how to indicate your intentions. If you don’t know these rules or have any questions about how to satisfy them, you should see an attorney. If you don’t follow the rules exactly, the court may invalidate your will.
- You anticipate a contest: If you suspect someone will question your mental capacity at the time you execute your will or may interpret your intentions differently than what you express in your will, then you should see an attorney. Having an attorney who can address such a contest and ultimately make sure your will is valid and executed properly.
- You want to feel confident that your intentions will be followed: One of the primary reasons to have a will is to know that your intentions for your family and property will be carried out when you die. There is no point in drafting a will yourself or using an online service if your will isn't valid or if you are going to worry for the rest of your life whether your will is going to accomplish what you want. It may be worth spending a few hundred dollars for the comfort of knowing that your intentions will be carried out through a will drafted by an attorney experienced in wills.
It might not make sense to use a basic estate planning attorney consultation when…
- You have a simple estate: If you have a simple estate and an online will service can accomplish what you need at a much lower cost, there is no need to pay more to consult with an attorney.
- All your property will pass through will substitutes: Assets that pass on to others through instruments other than a will aren't part of the legal process for wills (called probate). If all of your property that passes upon your death consists of non-probate assets, then you may not even need a will or to consult with an attorney.
- You have a very complicated estate: If you have significant assets, a business, a foreseeable contest, multiple wills, or anticipate other legal issues to arise, you may need the advice of someone more experienced with wills than a general practitioner. Under these circumstances, you'll want to retain an attorney who specializes in estate planning, where your will is only one component. Be aware, however, that these more experienced attorneys almost always charge a much higher fee than general practitioners.
2. Attorney who specializes in complex estate planning
As your estate plan becomes more and more complicated, more and more rules apply. If you have a complicated estate, and the validity of your will or the interpretation of your intentions rests on how well your attorney knows these rules, you'll want an attorney with extensive experience and specialization in complex estates.
This type of attorney can cost as low as $3,000, but can get into the tens of thousands of dollars if you have a very complicated estate.
It makes sense to use an attorney specialized in complex estate planning when…
- You can afford it: If your estate is complex and you have significant assets, chances are your estate has significant value. When you can afford it, protecting your significant assets is usually worth the cost of a specialized attorney.
- Your will is relevant to other legal interests: If your will addresses issues such as the custody of minor children after your death or pouring your assets designated in your will into a trust that functions separately from your will (called a pour-over will), you may need someone who specializes in the relationship between wills and other legal instruments.
- You anticipate complex legal issues: If you suspect someone is going to contest your mental capacity to execute a will or you know your estate will be subject to significant taxes upon your death, you may need an estate planning specialist who will have access to other specialists, such as medical doctors, accountants, and tax attorneys.
It might not make sense to use an attorney specialized in complex estate planning when…
- You can’t afford one: Although some attorneys may be willing to represent you at a reduced fee, most attorneys aren’t. If you can't afford to retain specialized lawyers at prestigious law firms, you should seek advice from a basic estate planning attorney who has some experience drafting wills.
- You don’t need one: Obviously, if you have a simple estate and need a standard will that's not likely to be contested, there’s no need to pay for an expensive lawyer who specializes in areas of estate planning that you don't need.
3. Online will services
For a small fee (anywhere between $15 and $250), an online will service provides a “fill-in-the-blank” form for you to designate the important information in your will that describes your assets and who you want your assets to go to when you die. It also gives you a place to name an executor (the person who will handle your estate when you die) and space for the required number of witnesses to write their signatures.
Generally speaking, these services will provide a form that should satisfy the laws in your state.
Using an online will service is a convenient, simple, and inexpensive way to execute a valid will. It’s worth comparing the various online will services and their respective costs. The main benefits of using any will service is that you don't have to leave your home, retain an attorney, or pay high legal fees.
Of course, the main disadvantage of using a will service is that you can't get comprehensive legal advice. You can run the risk of executing a will without being fully aware of the legal consequences or issues that an attorney might anticipate and be able to avoid.
If you have a complicated estate, anticipate legal issues to arise, suspect someone may contest your will, or simply want to be confident that your will is valid and will accomplish what you want, then a will service probably isn’t the best option for you.
It makes sense to use an online will service when…
- You have a simple estate: If most of your property passes through payable-on-death accounts or other non-probate instruments, an online will service is sufficient to pass on your property at death.
- You don’t anticipate a federal estate or gift tax: The estate and gift tax exemption is $11.58 million per individual, up from $11.4 million in 2019.
- You don't anticipate legal issues: If you have no underage children or business interests, don't have to pay estate taxes, and don't anticipate someone contesting the validity of your will, there aren't too many issues that are likely to arise for which you may require legal advice. You can save some money and have a valid legal will by using an online will service.
It might not make sense to use an online will service when…
- Your estate is complicated: Complicated circumstances might include things like taxes, having minor children, or owning a business.
- Your estate plan has tax implications: If your estate plan involves the transfer of property that results in significant tax consequences, an online will service isn't going to help. You need to see an attorney to be sure your interests and the interests of your family members are protected.
- You anticipate legal issues to arise: Although your will may be simple, legal issues often arise after you die. These can come in the form of a disgruntled heir contesting the validity of your will, having minor children you want to provide for after your die, or questions about the existence of another will or the interpretation of a provision in your will. You will need legal advice to address these issues.
Consider Your Needs Before Executing Your Will
You don't need to have the longest, fanciest, or most expensive will. You just need a will that accomplishes your intentions when you die. As long as your will satisfies all the rules for executing a will and clearly expresses your wishes, that’s all that matters.
If you need a will, before you pay for an online will service, basic estate planning attorney, or specialized estate planning attorney, consider your assets, your potential for contest, and what you want to accomplish in your will, and choose accordingly. If you’re still not sure which service to use, consider planning a free consult with a lawyer via Cake today.