A will is a foundational part of estate planning. When this document is valid, it directs the distribution of assets owned after death.
A will can include real estate, family heirlooms, money and other property. Those assets may be granted to a spouse, children, other family members, friends, nonprofit groups and other recipients.
The choices made in a will can involve assets with significant value. A will may distribute assets worth hundreds of thousands or millions of dollars or even more.
Crucially, wills may help families either avoid the probate court process or make that process easier to manage.
Wills are only executable after their author, or testator, passes away. Combined with the potentially high value of assets listed in a will, it’s only natural to question the role of attorneys in this process.
You may have asked yourself, “Do you need a lawyer to make a will?” Or “Do I need an attorney to write a will?”
Keep reading to learn more about the role of attorneys in the creation and execution of wills.
Do You Need a Lawyer for a Will?
It’s important to recognize that there is not one national standard or federal law for creating wills or ensuring they are valid. Instead, a variety of state-level laws and regulations apply to wills. Specifics can vary significantly based on where you live.
That said, the American College of Trust and Estate Counsel explains that individuals can generally write their own will. However, the validity of the will is determined by whether it aligns with applicable state law.
For example, some states allow a will to be written by hand. Others require the will to be typed. In many cases, witnesses need to see the will signed, and it must be notarized as well.
This is crucial context for answering the question, “Do I need an attorney to write a will?”
In the most basic sense, an attorney is not strictly required to create a will. That’s in contrast to professionals like notary publics, who are required to notarize a will to make it valid in some jurisdictions.
Individuals can and do create their own wills. However, the validity of the will depends on it fulfilling the obligations set by state law. These requirements may be somewhat complex or have the potential for misinterpretation.
Can an Attorney Help to Create a Valid and Binding Will?
It may be more relevant to ask if an attorney can help to create a valid and binding will. The answer to this question is yes. A qualified and experienced attorney in the trust and estate practice area can provide informed and accurate guidance related to wills.
These lawyers understand how to prepare legal documents, such as wills, in accordance with local regulations. They understand how to navigate specific state requirements, like having witnesses present for the signing of a will.
That kind of knowledge is valuable both for the person creating the will and for their family members. Issues with a will’s validity can mean more time spent in probate court. That can be especially difficult for surviving family members who are already dealing with losing a loved one.
One of the key benefits of a will is simplifying and, in certain cases, avoiding the probate process. Working with a trust and estate attorney to create a will can more effectively support that goal.
Experienced trust and estate attorneys can also help to proactively address issues that may arise for individuals preparing their own wills. For example, minor children cannot directly own real estate in many states. Additionally, certain assets, like some retirement accounts, are distributed based on named beneficiaries—even if a will says otherwise.
A qualified attorney can help to find a solution, such as creating a trust to hold that property. Many similar considerations may not be explicitly connected to the act of composing a will. Trust and estate attorneys can leverage their broad understanding of related laws to identify and avoid these complications.
Additionally, an attorney's knowledge of this practice area can help to provide broader guidance. Creating a will is an important part of estate planning, but it’s only one part of a larger whole. There are many other considerations involved, from tax planning and potentially creating a trust to moving through the probate court process.
You don’t need a lawyer to make a will. However, a lawyer can provide useful guidance and support both in making a will and in the larger estate planning process from a legal perspective.
