Using Online Form to Write Will May Lead to Probate Litigation

 

Using Online Form to Write Will May Lead to Probate Litigation

There are online forms designed to aid you in just about every area of your life, from creating a resume to filing your taxes. It’s perhaps no big surprise, then, that you can also find online forms to help you create legal documents such as a last will and testament. But is it a good idea to use a digital form to write something as important as a will?

Some online guides and templates may be sufficient (although not ideal) when it comes to creating a very basic will, but digital templates don’t lend themselves to more complex wills and may actually lead to probate litigation or a contested will in the future. Having your will contested can result in a number of unintended consequences, such as:

  • Having an older will or version of the will used instead (as long as that will is valid)
  • The court declaring that you died intestate (without a will)
  • None of the provisions in your will being carried out
  • Your intended beneficiaries failing to receive their inheritance

Digital Wills and Florida’s Requirements for a Valid Will

To better understand some of the limitations of a digital will, let’s first look at the requirements for a valid will, as laid out by the Florida Bar. A will must:

  • Be created by a testator who is over 18 years old
  • Be created by a testator who is of sound mind (has not been deemed incompetent in a prior legal proceeding)
  • Be written (meaning typed or hand-written)
  • Be signed by two witnesses who oversaw the creation of the document and who also watched one another sign the will

Because wills can be typed, it is entirely possible to create a valid will using an online form—as long as you still have two witnesses who sign a printed out version. The ease of using a digital form might lead some people to incorrectly believe that they can create a will entirely on their own and still have it hold up in probate court.

Digital Form May Not Be Able to Address Complex Estate Issues

Digital Form May Not Be Able to Address Complex Estate Issues

 

In the end, the validity of a will created using an online service might not be the biggest issue—instead, the biggest problem may be the loopholes or complex situations that online services fail to take into account.

A couple of years ago, Consumer Reports magazine had a panel of attorneys and law professors test several popular online will services. The panel concluded that the will-writing services weren’t ideal, but could be used in the creation of a very simple will (for example, if someone wanted to leave their entire estate to their spouse). However, the online services did not lend themselves to more complex estate issues and assets, such as commercial property, stocks and bonds, and business ownership.

In some cases, online forms don’t allow enough flexibility, and in other cases, they allow too much. The Consumer Reports panel found that the will-writing service from LegalZoom, for example, allowed people to add anything they wanted to the special-directives section, which could lead to someone unintentionally creating clauses that contradict other parts of the will.

While digital forms may be convenient, Floridians who are creating anything beyond a very basic will would still do well to consult with a probate attorney. It’s better to play it safe than to risk having your will declared invalid and your family not receiving the inheritance you intended.

About the Author:

Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.