Do I Really Need a Lawyer to Write My Will? Yes, Yes, Yes!

“Can’t I just write my will myself?”
“There are some great templates online.”
“My friend downloaded one and it worked fine.”
“We just have a simple estate.”

We hear these things more often than you might think… On the surface, it feels reasonable. Writing a will doesn’t sound that complicated, right? Lot’s of other people just do it themselves. You’re just deciding who gets what… But here’s the reality: a will is not just a laundry list of your belongings. It is a document that must go through probate to be valid. And if you didn’t know, we would like to tell you: Probate is not forgiving. Probate brings a whole host of questions and concerns.

A Will Is Not Just Words on Paper

When you write a will in any state, it’s not just about the words that you’re writing down. They need to be written with an understanding of probate.  The document that we call “a will” is really only paper until it goes through “probate”.  Probate is a process through Surrogate’s Court where the Surrogate Judge will determine the documents validity.  Once admitted to probate, the document earns it’s place as THE valid Last Will and Testament of the person who passed.  The probate proceeding, as a process in and of itself, can have any number of roadblocks and difficulties.  The last thing you want to do is create a “simple will” that causes problems when it’s needed - that time being probate!  In New York State, a will must meet very specific legal requirements to be valid. It’s not enough to just write down your wishes and sign your name!

In part, New York State law has certain requirements regarding a will, including that it must:

• Be in writing
• Be signed at the end by the testator
• Be signed in the presence of at least two witnesses
• Be declared by the testator to be their will
• Be witnessed properly within strict procedural guidelines
• Have witnesses sign Affidavits regarding the will signing ceremony in front of a notary.

Cornell Law School’s Legal Information Institute summarizes this process very clearly:

“A will that is not executed in compliance with statutory formalities may be denied probate.”

That last sentence is crucial. If a will is denied probate, it means the document has not met the necessary requirements to be proven as THE valid Last Will and Testament of the person who passed. That means that if Erie County Surrogate’s Court deems that your “will” doesn’t quite meet the requirements, your estate would be subject to other scenarios unfolding.  For example, potentially another will is admitted to probate or potentially the person who passed will be considered to have passed intestate meaning without a will.  If a person passes without a valid will, New York State default laws will govern for the intestate estate.  Those default laws will control who has the right to handle your estate and how any assets must be distributed.  While in horseshoes and hand grenades, “almost” counts… Writing your will properly is a time when “almost” most certainly does NOT count. 

The Presumption of Validity Matters More Than You Think

When a will is executed under the supervision of an attorney, there is a presumption of validity regarding the will when it comes to probate in Surrogate’s Court. This presumption puts a greater onus on a disgruntled next of kin (or an “adversely affected” party) pursuing a potential will contest.  This is helpful in terms of Surrogate’s Court finding that the necessary legal requirements were met at the time the will was done.  Beyond those benefits, an attorney can provide experience and wisdom regarding what should and shouldn’t be in the document and assessing other factors that can come into play at the time of probate.  There are factors that must be considered at the time the will is being prepared given the potential issues with probate.   This includes an understanding that the attorney assessed that the person had “testamentary capacity” - meaning the person had the ability to understand what the document meant, that the person had an understanding of their assets and debts, and that the person knew the “natural objects of the person’s bounty”.  As well, this includes assessing difficulties that may come into play and how to handle “red flags”.  When these kinds of concerns are brought to life, the planning can be addressed and tailored to specifically match a person’s goals and expectations.  When a person has prepared his/her own will, there are any number of questions about what was done at the time and there is a much greater chance for problems to ensue at the time of probate.  Bottom line: a solid will that is prepared and executed with attorney supervision carries certain presumptions and understandings.  A homemade will is just the opposite, carrying no such presumptions and understandings.

When questions arise about a homemade will (and they often do), costs and delays begin. Witnesses may need to be located. Testimony may be required. Litigation may follow. 

In Erie County Surrogate’s Court - where Buffalo and Williamsville estates are administered - the procedural details of how a will was created matter immensely. A will is not just about your intent. It’s about whether your intent survives scrutiny from the Surrogate’s Court and/or others who have a right to object against the will.

Testamentary Capacity Is Not a Casual Standard

To create a valid will in New York, a person must have testamentary capacity. That means they must:

• Understand they are making a will
• Understand the nature and extent of their property
• Understand the “natural objects of their bounty” (who would normally inherit)

The New York Court of Appeals has long reinforced this principle in case law, emphasizing that capacity must exist at the time of execution.

This matters at the time of probate.  An experienced estate planning attorney assesses capacity in real time. That can become critical later if the will is challenged.

A downloaded template for a will does not protect you from allegations of incapacity or other allegations regarding the will.

Probate Is Where Homemade Wills Fall Apart

On paper, a handwritten or downloaded template may seem like a perfectly reasonable method for your situation. But probate is where every technical detail is reviewed carefully, and even minor mistakes can create major delays. Here are a few examples of the most common problems we see when families attempt to administer a homemade will:

• A will signed without proper witness language.
• A will signed by witnesses who cannot later be found.
• A will with handwritten changes in the margins.
• A will that contradicts beneficiary designations.
• A will that leaves property that wasn’t actually owned.
• A will that has confusing language.
• A will that lack certain provisions.
• A will that causes more problems which unfold through the course of estate administration.
• A will that fails to consider how property is handled through probate.
• A will that fails to factor in issues with the people who will be involved in probate.
• A will that is (if we're being really honest) not planned with an understanding of the many factors that go into probate and estate administration. 

Each of these mishaps creates delays, additional filings, and sometimes full-blown disputes. On the other hand, an experienced estate planning attorney is concerned about what the will may mean into the future, given all the various factors, including probate and the entire estate administration process. 

“But My Estate Is Simple.”

We hear this often. And we understand why it feels that way. Most people don’t see their lives as complicated.  They see a home, a few accounts, maybe retirement savings, and family members they care about. But “simple” on the surface does not always mean simple when things play out in probate.  This means considering: 

• Creating a holistic plan that works
• Coordinating your assets with beneficiary designations
• Addressing potential incapacity and/or disability of individuals
• Choosing the right executor (and back up)
• Choosing the right trustee (for potential testamentary trusts)
• Choosing the right guardians (for potential minor children)
• Planning for probate realities
• Anticipating conflict before it happens
• Getting organized and intentional

Templates cannot anticipate your specific life circumstances, and they cannot replace the experience of an attorney who sees how things play out in probate.

The Outcome: False Confidence

Perhaps one of the most dangerous things about DIY wills is that they create a false sense of security for the individual, and often for their family. We totally get it . . . you genuinely believe that you’re doing all the right things! In fact, so does your family! It’s only after you have passed away that your family will discover that the document was never reviewed by someone who understands probate, or other factors, like overall estate plans and family dynamics, and their impact on the estate.

Your loved ones may find themselves spending significant time and resources in Surrogate’s Court addressing issues that could have been avoided.  In some instances, the document may  not meet New York’s statutory requirements and could be denied probate altogether.  If that happens, it would depend on the facts and circumstances at the time - is there another will that was found?  Or, potentially, New York State default laws would come into play. 

We understand that cost is often a consideration when creating an estate plan. However, the expense of working with an experienced estate planning attorney is typically minimal when compared to the financial and emotional cost of delays, disputes, or litigation caused by an invalid or poorly executed will or assets passing in a way that was unintended.

A Will Is Only One Piece of the Plan

While you may think that a will is the only piece of estate planning you need, that is not the case. A good estate planning attorney will discuss what your plans are during life, not just in your passing. Should you become incapacitated - through illness, accident, or cognitive decline - a will offers no authority for someone to manage your finances or make health care decisions. Other documents are needed.  These documents also have their own proper considerations and should not be done DIY!  These documents include a Power of Attorney, a Health Care Proxy/Living Will and others.  It’s possible that a lifetime trust could be set up and should be discussed with an estate planning attorney.  Unfortunately, many families only realize the lack of beneficial planning when it’s too late! When the crisis hits, there is often no turning back to change what was done in an attempt to be “simple”. 

Working with an estate planning attorney can mean a difference in a plan that will work versus a document that causes problems.  As well, it’s so important to discover what other planning opportunities are available for your specific facts and circumstances.

A Practical To-Do List Before You Start Your Will

As you probably already know, we love a good checklist! If you’re considering creating a will, these are the first steps that we would start with to get the ball rolling. You don’t need to jump off the couch and call an attorney just yet.  There’s a little bit of legwork that will help put the pieces together, both for you and for your estate planning attorney:

☐ List all of your assets and how they are titled
☐ Identify any and all beneficiary designations currently in place
☐ Gather copies of existing estate planning documents
☐ Consider who you want to nominate as executor (and at least one backup)
☐ Think carefully about guardians for minor children
☐ Identify potential areas of family conflict
☐ Consider whether a trust may better serve your goals (if unsure about this keep it on a list of questions)
☐ Ready to get started? Schedule that consultation with an estate planning attorney!

At the End of the Day…

Can you technically write your own will in New York? Yes. Should you? No. We don’t say this because attorneys want to complicate things, or want to charge you a ton of money. We won’t say it just because your estate is unusually complex - “simple” estates need thoughtful planning too! And it’s not because you need something overly elaborate. It’s because at the end of the day, this document will speak for you when you cannot speak for yourself, and it deserves to be done correctly.

For the families we speak with throughout Western New York, taking estate planning seriously is one of the most meaningful ways to protect loved ones from unnecessary stress and costly probate disputes. It is a way to create calm after your passing, not chaos.

If you’re ready to create or update your will properly, we’re here to help guide you through the process thoughtfully and carefully. Visit our Estate Planning to learn more, or reach out when you’re ready to schedule a consultation! And remember: Your legacy deserves more than a template.