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Problems with DIY Estate Planning, Part 1

Posted by Sasha Golden | Jul 04, 2009 | 0 Comments

Plenty of folks think that a will is just a form — you can buy a piece of software for less than $100, plug in names and addresses and — poof! — out comes a document that will take care of your loved ones after you're gone. I will be exploring why this kind of thinking is a gift to probate lawyers over the next few weeks.

First, all the language in a will means something. Sometimes the language that's missing means even more. If the will is a generic document which is missing language that's required under Massachusetts law to allow the executor to do or not do something, then there's usually not much which can be done to change the situation after the creator of the will dies. Massachusetts law doesn't allow wills to be “reformed,” or corrected, after death, so everyone is stuck with a document that may have a big problem. So, a good estate planning lawyer makes sure that the will complies with state-specific procedural requirements.

Unfortunately, a will that you get off a piece of software which was drafted somewhere else and does not properly reflect Massachusetts law and our Probate Court rules can have unintended consequences. For example, the failure of a do-it-yourself will to specifically “waive sureties on the bond” — something mentioned in nearly every Massachusetts will — means that the executor may need to spend hundreds, sometimes thousands, of dollars buying an insurance policy as a condition of being appointed. Similarly, a will that doesn't waive the requirement to get a license to sell real estate adds more time and cost to estate administration. So, whatever money you might think you saved drafting your own will can easily be lost — and then some — after your death, because some lawyer in some other state who drafted the document didn't know Massachusetts law and practice. Not much of a bargain there.

About the Author

Sasha Golden

Alexandra “Sasha” Golden received her undergraduate and law degrees from Boston College, and has been practicing law in Massachusetts since 1994. Attorney Golden is a long-standing member of the Massachusetts chapter of the National Academy of Elder Law Attorneys (NAELA) and of the Probate and So...


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