In most circumstances, online last will and testament templates can result in a valid will, provided the document is properly executed. Yet it might still be wise to have your will reviewed by a lawyer. There is a difference between a valid will and the best possible estate plan for your situation. A Washington lawyer at Truce Law can review your will (if you’ve written one), help you craft a will if you haven’t, and take the time to review your situation to help you create the best estate plan for your needs.
Under Washington law (RCW 11.12.010), anyone who is at least 18 years old and “of sound mind” can write their own will. For a will to be legally valid, the will must be signed by the person writing the will and two witnesses. While Washington law doesn’t render a will invalid if it has been witnessed by an interested person (namely, one of the will’s beneficiaries), issues can arise when a will is signed by someone who has an interest in the document, especially if family or the court later questions the validity of the will.
Basically, if the will gets challenged in court, you wouldn’t want to create the presumption that the will was signed under “duress, menace, fraud, or undue influence.” When a will is witnessed by a person who has an interest in the document, the will could potentially be subject to greater scrutiny later. When we talk about executing a will, we mean the process that makes a will valid, which includes the signing and witnessing of the document. Online last will and templates have made writing a will easier than ever, but they can’t execute the document for you.
If you’re thinking of using a last will and testament template, you’ll want to take stock of your situation before you proceed. Sometimes people think their situation is simple when, in fact, it isn’t. Online last will and testament templates have their limitations, and there are many situations where these solutions are not the best option or where using a template could cost you more down the line.
Because a DIY will can result in mistakes, many people still choose to hire an estate planning lawyer to help them write their will or have an estate planning lawyer review their will before they finalize the document.
In this article, we will explore situations where using a last will and testament template or DIY option might not be right for you. These situations include:
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- Having a Child or Beneficiary who has Special Needs
- When You Have Concerns About Estate Tax Implications
- When You Have Property in Multiple States
- When You Own a Business
- When You Have Valuable Digital Assets or Intellectual Property
- When You Have Concerns About Probate or Family Disputes
- When Privacy Matters
- When More Comprehensive End of Life Planning is Needed
- When You Have Debt
- When You Are Concerned About Making Errors
Special Needs Beneficiaries
If your child or one of your beneficiaries receives public assistance, Medicaid, or disability benefits, you might want to speak to an estate planning lawyer about a special needs trust before including your special needs child or beneficiary in your will.
Inheritance of money or property through a will could potentially affect a child or beneficiary’s eligibility for Medicaid and other benefits. Certain government programs have strict asset tests or income limits. Being the beneficiary of a will can put a person’s access to these programs at risk. Omitting a child with special needs from your will to protect his or her access to these programs can carry its own issues.
Under Washington law (RCW 11.12.091), a child omitted from a will “must receive a portion” of the estate “unless it appears either from the will or from other clear and convincing evidence that the failure was intentional.” If there isn’t clear and convincing evidence supporting the omission of the child, the child will receive a portion of the estate under Washington’s intestate laws. So, if you plan to omit your child from your will to protect his or her access to government benefits, a template will might not be sufficient in your situation.
Omitting a child or beneficiary with special needs from your will might also not be the best estate planning solution.
In situations where a beneficiary or child has special needs or receives government benefits, you might want to speak to an estate planning lawyer about whether a special needs trust is right for you. A special needs trust is an estate planning instrument that allows you to support a beneficiary with special needs without putting their access to public assistance at risk. Money in the trust can typically only be used for specific purposes, such as for medical expenses not covered by the government, to cover transportation costs, or to pay for caretakers.
A template last will and testament cannot help you establish a special needs trust, and will not be able to address the complexities that can arise when a child or beneficiary has special needs.
Estate Tax Implications
If the value of your cash, securities, insurance, annuities, trusts, business interests, or assets falls under estate tax filing threshold limits (in 2024, the filing threshold is $13,610,000), then your heirs won’t need to file an estate tax return. But if you plan to pass a substantial estate to your heirs, then you might want to speak to an estate planning lawyer.
In determining the value of your estate, the government looks at fair market value, and allows for certain deductions (for example, you can pass unlimited property to your surviving spouse without triggering the estate tax, and if you pass away, you can pass any unused estate tax exemption to your surviving spouse). The government will also look at taxable gifts given during your lifetime, which can contribute to the filing threshold (in other words, giving away property, cash, or assets to beneficiaries while you are alive won’t help you avoid the estate tax).
If you have a significant estate, you might want to speak to an estate planning lawyer to see whether other estate planning instruments might be right for you and your family. If your estate comes close to the estate tax filing threshold, then issues of appraisal and valuation can also affect the taxes your beneficiaries would pay. In this situation, an estate planning lawyer may be able to help you create an estate plan that provides you the best solution for your tax situation.
If you have a high net worth, your estate planning is more likely to be more complicated and a simple template last will and testament might not be right for you.
Property in Multiple States
In most situations, before property can be passed to beneficiaries, your last will and testament will have to pass through probate. Probate is the legal process by which a will is validated in court. In most cases, probate will take place in the state where you lived when you passed away. Yet, if you own property in multiple states, your beneficiaries may need to go through probate in the states that have jurisdiction over the property.
So, if you own a vacation home in Florida, or if you have invested in multiple properties in different states, and don’t want to have your beneficiaries or executor open probate in multiple states, you may need to consider ways to transfer property outside your last will and testament. One way you can do this is to put property in joint ownership with your beneficiary or spouse. Another way is by putting the property in a trust. Each of these strategies will have their own benefits and drawbacks. An estate planning lawyer can help you structure your estate to help your beneficiaries avoid the headache of having to go through probate in multiple states.
Business Ownership
If you own a business, you may want to explore alternatives to a template last will and testament, especially if you plan to have someone other than your spouse or your children run your business after you pass away. For example, business owners might find that they want their spouse or their children to receive business income, but they may not want their spouse or their children managing the business. Or they may want the business to be sold to another party after they pass away. Other business owners will simply want to leave behind a plan for winding down the business after they pass.
Business ownership situations can sometimes lead to increased risks that a will might be challenged in probate, especially if you plan to put only one of your children in charge of the business, plan to appoint someone other than a family member to run the business or have plans for your business that don’t gel with your surviving family members.
If you own a business or a stake in a business, you’ll likely want to create a succession plan. You’ll also want to consider tax implications for beneficiaries, especially if you anticipate that your business will grow in value. Sometimes business owners set up a trust or work with their financial planner or estate planning lawyer to find solutions for their beneficiaries. Business succession planning can get complicated, and a template last will and testament won’t likely address the needs of business owners.
Valuable Digital Assets and Intellectual Property
If you own valuable digital assets like bitcoin, domain names, highly followed social media accounts, or online content you have created (especially if the content has been monetized), you may want to speak to a lawyer to help you with estate planning. Washington law has a Uniform Fiduciary Access to Digital Assets Act, which allows a user to give a beneficiary full or partial access to a digital account.
You can always include digital assets and intellectual property in your will, but if your digital assets have monetary value, or business value, then you might want to have a succession plan or digital estate plan in place in addition to your last will and testament. Monetized business assets could have similar implications for beneficiaries that a business would. Do you want your beneficiaries managing these accounts? Do you want a trusted individual to manage your accounts? Or do you want to have a plan in place to close these accounts after you pass?
Access to digital assets can be limited by privacy laws or password protection without proper legal tools or permissions in place. In some cases, simply providing your beneficiaries with passwords and backups might be sufficient, but in other instances, transfer or intellectual property and digital assets might be more complicated and may require written permission in a will or through other legal means. An estate planning lawyer can help with digital estate planning.
Concerns About Probate and Family Disputes
If you have concerns about family disputes or have reason to believe your will might be contested in probate, you might want to speak to a lawyer when creating your estate plan. Family disputes and issues with probate can arise if you plan to omit a family member from your will, but they can also occur in situations where family members don’t agree with aspects of your estate plan.
Washington law will hold a will to a higher standard if the will omits a child, spouse, or domestic partner. Unless there is clear and convincing evidence that the omission was intentional, Washington intestate laws might apply. Washington intestate laws determine how property of an estate would be distributed absent a will. Under Washington intestate law RCW 11.04.015, a spouse or domestic partner typically would receive the estate, or the estate would be divided between the spouse and the deceased person’s children. If there is no spouse, then the estate would be divided amongst the children.
If you plan to write a will that deviates significantly from Washington’s intestate laws, plan to donate a portion of your estate to charity, or own a business, you might want to speak with a lawyer when writing your will. In certain situations, your will might be more closely scrutinized by the court during probate, and even a small mistake could cause issues.
Privacy
Probate records are public records. If you don’t want your will to be on the public record, you might want to work with an estate attorney to explore other, more private estate planning tools. Trusts might allow your beneficiaries to avoid the probate process and can protect your privacy regarding assets in the trust.
End of Life Planning
For many people, writing a will is just one piece of a comprehensive end of life plan. End of life planning might include other documents like living wills, advanced health care directives, powers of attorney, and more. While template documents exist for end-of-life planning, whether you’ll need an attorney will depend upon the complexity of your situation.
Debt
If your beneficiaries have debt, creditors may be able to seize your beneficiary’s property without a proper estate plan in place. An estate planning lawyer may be able to help you protect your estate from creditors if this situation applies. If you are concerned about your children or spouse’s spending habits, you may also be able to structure your estate using a trust that allows you to manage how and when your beneficiaries receive money. In most situations, establishing a trust is better than omitting a child or disinheriting a spouse.
Errors and Omissions
When it comes to your will, details matter. Mistakes in your will could create ambiguities that could lead to issues when your will goes to probate. When it comes to estate planning, some assets might already have a named beneficiary under the law, like insurance or retirement accounts. If you want to distribute your wealth across many beneficiaries and multiple generations of your family, you might also want to speak to an estate planning lawyer to help you structure your estate plan accordingly. If you’re uncertain about any aspect of your estate plan, it can’t hurt to speak to an attorney.
Finally, even if your will is simple, and you intend to DIY with your will, it can never hurt to have your will reviewed by a lawyer before you sign it. A lawyer may be able to catch errors and point you to other estate planning tools that might work better for your given situation. The Washington estate planning lawyers at Truce Law are here to help you with your estate plan and will, whether you need a review of a will you’ve already written, or are just starting out on your estate planning journey.
This article is for educational purposes only and does not constitute legal advice. Every situation is unique. For guidance specific to your circumstances, consult a licensed family law attorney in your area.