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Ask Nancy…

Question: My cousin told me that he and his wife used an online service to prepare their wills. He said it was much less expensive than going to an attorney to have a will prepared. My wife and I need to prepare our estate planning documents. We are planning on disinheriting one of our children, and are hesitant to have wills prepared by an online service. Can you give me some advice?
Answer: In my career, I have seen some do-it-yourself estate planning blunders. One of the most memorable is an estate where the testatrix wrote her own will on a legal pad. The terms of this will gave the decedent’s entire estate to her boyfriend of over twenty years. This will was executed in the hospital in the presence of two nurses. At trial, both nurses testified that they knew that the document for which they were acting as witnesses was a will, despite the fact that the testatrix never stated that the document was her will and the title of the document clearly stating that the document was her will.
After a trial on the matter, the court held that testimony of the witnesses did not support due execution. This was because there was no publication of the instrument offered for probate as the testator never declared to the witnesses that the instrument was his will.
When an attorney supervises the execution of a will a presumption of due execution arises, meaning that there is a presumption that all of 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 satisfied that the will was properly executed. If a lay person executes a will themselves without attorney supervision they run the risk having the will denied probate.
If you die leaving a spouse and children or only children, then all of your children would 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 would be after a lengthy will contest proceeding initiated by the the disinherited child.
At the end of the day, paying an attorney to properly prepare and supervise the execution of your will and other estate planning documents is far less costly than litigating over the validity of a will in the Surrogate’s Court. This will save your love ones a lot of time, money and aggravation after your death.

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