Simon Towell* As the pandemic sweeps the globe, it may surprise you to know that most people do not have a will or a will lawyer. Pandemic or not, most adults in the major jurisdictions will go to their graves without a will – while lawyers handling wills, trust and estates abound and mere searches for a “will lawyer near me” is not necessarily going to get you the lawyer you need.
In fact, in the United States, a recent study showed that 68 per cent of people did not have one. The figures are not much different in other jurisdictions either, which has left many people seeking out a lawyer to make their will and to develop and estate plan.
In the United Kingdom the number of adults without a will has been put at 59 per cent, which is as disturbing as the US figure. Similarly, those in Australia and elsewhere have been shown to lack a will or have carried out proper estate planning.
All of which points to the need for a lawyer to make a will and to do so in accordance with your wishes. There are also legal changes that an expert lawyer can advise you about, something we reported on three years ago regarding wills and estate law changes. Just remember, things change.
But there is a technique to seeking out a will lawyer that you need to be aware of.
Most lawyers will say that they handle such work and certainly being prepared to handle your estate is all important as dying intestate can lead to a distribution of assets to surviving spouse and descendants in a manner that is not necessarily what is wanted.
Consider the following when choosing a ‘will lawyer’ – or any lawyer dealing with estates and estate planning.
What should you consider?
Start by Asking Others
Start by asking with family and friends to obtain referrals to good lawyers experienced in handling trusts, estates and wills.
Others will have gone through the same process and some may also have experience of issues involving wills and the contesting of estates with advice as to how the situation was handled by specific lawyers.
Look at any accreditations and memberships of estates and trust law for your ‘will lawyer’
There are a variety of associations in different jurisdictions dealing with this area of law, such as STEP (Society of Estate and Trust Practitioners) in the UK and in the US there is ACTEC (American College of Trust and Estate Counsel).
These associations and groups indicate that your lawyer is versed in and practising in the area of wills, estates and trusts. Such associations also provide the opportunity to search for lawyers who are experts in those areas and which will lawyers are close to you with appropriate expertise.
Check with your local bar association and/or your state bar website to ensure the attorney is licensed and in good standing also.
Check the Lawyers’ Experience with Wills and Estates
You should check the law firm websites to see what experience your potential lawyer has with the drafting of wills and estates. Check the law firm’s site social media accounts for information on estate planning services and updates on changes in estate planning laws.
Keep in mind that many firms use wills and will drafting as a ‘loss leader’. They will offer cheap wills as a way to obtain new clients and that can often mean you will be getting an inexperienced lawyer to go with your will.
So take care to ensure that you are getting someone who actually has experience and that will often come from a simple web check.
Meet Your Will Lawyer – Whether its a ‘will lawyer near me’ or not
Part 2 of your will lawyer check is to meet with the lawyer. You can tell a lot by sitting with them and talking about their expertise (or lack thereof).
You should ask some good questions and keep in mind also that there may be other key areas of legal interest for you to consider, as explained below.
A Will May Be A Whole Lot More Than Just a Will
Your will lawyer may be required to do a great deal more than just draft a standard will. This will depend upon a variety of factors such as the size of your assets, your family and marital situation and so forth, but make sure that you are well prepared to have someone who can provide some top advice on estate planning and trusts and anything else required to complete your estate planning requirements.
Ask About The Costs of Making a Will
While you shouldn’t make a decision based on cost alone when getting a will drafted you still need to know what the costs will be, which means asking some key questions of your new, will lawyer, such as –
- Will you be charged for an initial consultation about your will and estate planning requirements?
- How does the law firm charge out and what is the hourly rate, or do they charge a flat fee? (As many do for a will).
- If the fee is an hourly rate ask for some estimate as to the final cost.
- Ask what the costs will cover and whether there are any factors that may increase them?
- Will I be advised if costs go out of scope?
- Ask when you will be billed.
As we have said, searching simply for a ‘will lawyer near me’ is not enough. You need to undertake appropriate due diligence on your prospective lawyer.
Dying without a will is a potentially major problem
There are many downsides to dying ‘intestate’ where there is no will and the results can be a major problem for all concerned.
Mostly, the surviving spouse will inherit the property upon death, or direct descendants, and when there are unmarried couples, those who have non-traditional family arrangements and sometimes complex financial and family arrangements, the results can lead to upset and frequently litigation.
The signing of a properly prepared will, following the advice of a decent will or estate lawyer experienced in trust and estate planning, or just proper will preparation, will be important.
In several of the common law jurisdictions the legislation relating to wills relates to the law dating back to an English statute from 1677. Many courts will remain sticklers for the signing and witnessing of wills (where a testator for instance, forgets to sign or where there is one witness rather than two).
The formalities may seem mundane and even unnecessary and certainly the making of wills is changing, but the importance of this document for everyone remains important.
Should You Use Do-It-Yourself Will Software or ‘Solutions’?
There are a number of DIY will ‘tools’ and solutions around, but there are some serious considerations that need to be considered before using them.
There can be serious issues arising from the DIY will preparation that can lead to mistakes through honest ignorance of the repercussions of errors made in the preparation of a will, leading to significant family, financial and emotional repercussions.
While the fast-and-easy will software solution seems simple, easy and, of course, inexpensive, the downside needs to be closely considered.
If you are looking to use will software, as some programs will provide quite complex estate planning functionality quite apart from the simple will, then check out some of the will software programs, as below –
- Quicken WillMaker & Trust
- Fabric – Visit Now
- LegalZoom – Visit Now
- Do Your Own Will
- U.S. Legal Wills
- Rocket Lawyer – Visit Now
- Total Legal
- Trust & Will – Visit Now
- Gentreo – Visit Now
The Impact of the Pandemic on Wills And Why You Should Get Yours Written
There are a variety of challenges that the COVID pandemic has brought to bear, but there are also issues that have been developing in recent years regarding the way in which wills are made.
In the United States there are many states, including large states like California, which permit a testator to make a holographic will without the requirement for witnesses. These need to be made in the testator’s handwriting and signed by the testator.
However, there is a caveat that comes with holographic wills and that is that they are more often disputed in court than those drafted by a lawyer.
There is also a so-called ‘harmless error’ rule, which permits a Court to enforce a writing that may not comply with the legislation if there is compelling evidence that the testator intended it to be in his or her will.
The need to formally complete a will is the ‘rule’ in half of the US states and other major jurisdictions like the UK so it is particularly important to ensure you do so properly.
The pandemic has permitted emergency orders to allow for remote witnessing of documents through video links and similar. Certainly the COVID-19 pandemic has dragged the law relating to the making of wills into the 21st century as the electronic creation and witnessing of wills has been developed to let people make their plans notwithstanding lockdowns. These changes will survive the pandemic too and doubtless permanent laws will use technology to permit wills to be created with the use of modern technology.
Will Lawyer Near Me – Check List
The check list we’ve provided for your best will lawyer is one that should involve action and research. The disturbing statistics regarding those who do not have any will should waken those to ensure they make a will, and use an expert will lawyer to do so.
Simon Towell is a former lawyer who handled trust and estate and property law work and now acts as a trust administrator and occasional writer on trust and estate legal news.