DANGERS OF USING ONLINE WILL MAKING COMPANIES
By Taylor Kenck
Online will making companies create unnecessary risks for consumers.
Introduction
As technology advances, many companies are trying to leverage software to replace or revitalize certain industries. The legal industry has not been immune to this!
Nowadays, there are a number of technology companies offering products and services to help consumers create estate planning documents “on their own.” Please note, the companies I am referencing are not law firms with strong online presence–the companies I am addressing with this post are explicitly not law firms (which is a fact that they point out repeatedly). These are the “online will makers” or the “DIY wills” products that are everywhere for certain demographics.
Obviously, as an estate planning lawyer, I am going to be biased against these companies. Instead of shaking my fist at the proverbial sky, I want to describe why these products are dangerous, using real-life examples I have seen in my practice.
I know consumers are using these services; over the past few years, I’ve probably seen three dozen or so estate plans (both wills and trusts) prepared with online estate planning services. So I have considerable firsthand experience with them. This experience is precisely why I feel the products and services are dangerous.
Of those three dozen or so documents I have reviewed, MAYBE two or three were actually done correctly. Most of them had significant problems in their planning, form, or execution. Consequences from these problems ranged from minor to significant–for example, the documents that were not executed properly could not be admitted to court.
In this blog post, I’ve outlined three categories that I see as the biggest dangers with online estate planning software.
Serious Problems with Execution
Washington State law is very strict on how estate planning documents are to be executed (meaning signed). Witnesses are needed for the signing, and as a best practice there is often a notary present during the signing as well. While in theory, this doesn’t sound particularly complicated, I have seen it done incorrectly many times.
Of the dozens of documents I have reviewed personally, the majority of wills prepared with these online companies were not executed properly. In some cases, the notary incorrectly notarized the signature of the person creating the will. In other cases, the will was signed out of the presence of the witnesses (with different witness signature dates). In a couple of cases, the clients came to me with unsigned documents, thinking that they were valid.
Let me be clear: execution (signing) errors are often fatal under Washington law. These wills would not survive a challenge, and they might not be admitted to probate at all.
Using an experienced estate planning attorney helps ensure that these execution issues are avoided entirely. From my understanding, these online companies provide customers with handouts on how to sign their wills once they are printed out. In some cases, these one-page handouts are the extent of the instruction that they receive. This is a recipe for disaster! I have seen licensed attorneys (more than one) mess up the execution portion of a will. The likelihood of problems obviously increases with untrained individuals. These reasons are precisely why experienced estate planning attorneys are so important.
Missing the Benefits of Counseling with a Lawyer
A second common category of dangers I see are not necessarily as detrimental to the end product as the first. These problems come about when the clients’ goals are not properly communicated or explained in the document itself.
There is a significant benefit that comes from sitting down with someone that has planned hundreds of estate plans prior to meeting with you. That professional is walking in with different approaches, strategies, and points of view, all of which can help you make your goals a reality.
Folks without a background in estate planning might not even know what is possible or allowed under state law! For example, I once saw a will prepared through an online company that listed only the children as executors–even though both spouses were capable of being the executor for the other. These individuals did not even know that your spouse could act as executor under the will.
A professional will also have the experience needed to spot possible issues in interpreting your goals. For example, on multiple occasions, I have seen folks name a married couple as prospective guardians for their minor children–not realizing that naming a couple will create confusion in the event that they divorce.
These are mostly little things on the planning end, but they can have significant effects when the plans are put into effect. In many cases, the issue would have been spotted and resolved if they had an experienced professional to counsel with during the planning process.
Unauthorized Practice of Law
In Washington, giving legal advice or providing legal services without a valid law license is an offense with both criminal and civil consequences. As a society, we have determined that the consequences of bad legal advice are so significant that these penalties are warranted.
Online estate planning services get around this by arguing that they aren’t giving legal advice, and instead are simply providing forms. This argument doesn’t make sense–the words on those forms and the order they appear in is legal advice. Providing customers with instructions on “how to execute” their will is also legal advice (poorly given too).
I am blown away that state attorney generals have not dropped the hammer on these companies. Many of them are still very new, so I imagine this will eventually happen. Just in my small sphere, I have seen some serious problems with online will makers, so imagine just how significant the impact is.
What Happens When It All Goes Wrong
The final category of danger I see comes about when things go wrong with your will you created through an online will maker.
We’ve all probably heard the quote “to err is human.”
Everyone makes mistakes, both in their personal and professional lives. However, mistakes in some professions–lawyers for example–occasionally have far-reaching consequences. In one of the examples above, if a lawyer does not guide a client to properly execute their will, that will might be invalid and useless for the client’s loved ones. Entire inheritances could be lost as a result.
In law, we have a natural mechanism to fix this sort of mistake: malpractice lawsuits. While I hope to never make a mistake that negatively affects my clients, I nonetheless carry malpractice insurance, just in case that day comes. This is not required under state law, but I nonetheless feel it is a crucial component to a successful practice. Thus, the infrastructure is there to allow my clients to collect on that mistake, if it happens someday.
Conversely, if you use an online will maker or similar company, I imagine you waive every known right to sue under the user agreement that you likely signed without reading. You also probably agreed in writing that the company is not practicing law, and that you are representing yourself, etc. So, collecting malpractice would be exceptionally difficult from these companies.
Conclusion
Again, my bias is clear–I am incentivized to push people away from online will making companies and towards actual practicing lawyers. The same bias applies to new technologies like AI (ChatGPT). This is not a reaction against new and emerging technologies (I leverage lots of tested technologies in my practice), but instead a reaction against untested and unaccountable advice.
I have seen firsthand that many wills created through online will makers or companies are done incorrectly. In my case, the majority of wills I have reviewed had significant problems in their form and execution.
Using these products and services can leave your loved ones with tasks ranging from difficult to impossible. While you may save a few hundred dollars now, on the backend, your loved ones may end up paying significantly more in attorneys fees fixing those problems (if they can be fixed at all).
The day may come when technologies do replace the need to go to an attorney for your estate planning process, but that day is not now.
Please reach out for a free initial consultation for your estate planning needs. Crestview Law has a physical office in Wenatchee, but we can serve clients throughout Washington with our many virtual tools.
