Q: I have two children and would like to leave my assets to them and my grandchildren. That said, can I use an online service to prepare my Last Will and Testament?
A: When an attorney supervises the execution of a last will and testament, a presumption of due execution arises, meaning that the law assumes that all the proper statutory formalities were followed when the will was signed. If the will execution ceremony is not supervised by an attorney, this presumption does not exist. In order for the Surrogate’s Court to admit an unsupervised will to probate, it must be satisfied that the will was properly executed. If a will is executed by a person on their own, without attorney supervision, they run the risk having the will rejected by the Court.
This can be an especially large problem if you are disinheriting one of your children or not leaving your assets to them in equal shares. If you die leaving a spouse and children or only children, then the probate process requires that all children be notified of the will being submitted to the court for probate, not just the children inheriting under the will. If you executed your will and it is later discovered that the proper formalities were not followed, then your will could be declared invalid and denied probate. This could be after a lengthy court battle initiated by the disinherited child.
Even if there is no will contest, wills that are prepared by an estate planning attorney provide for family situations that an online will cannot. For example, if you have a disabled child or a minor grandchild that you would like to make a beneficiary of your will, it is recommended that those beneficiaries inherit in a trust rather than outright. In many cases if you have disabled or minor beneficiaries it is advisable to avoid probate all together and create a living trust. An online service cannot provide the necessary guidance and planning to properly navigate these situations. An estate planning attorney can use years of experience to guide the client in the process.
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