Are Online Wills Legal? – FindLaw
You can do almost everything online these days. Want a pizza? Order online. Want to prepare and file your taxes? Do it online. Find love? There are many online options for you.
But when it comes to wills or other important estate planning documents, people are skeptical about doing it over the internet.
Can I Make a Will Online?
Yes. You can draft your own last will and testament using an estate planning form and service company. The surprising thing about wills is that they are relatively simple. A will can even be one page. As long as your will meets state-specific requirements, a probate court will accept it as a valid legal document.
In some states, you can even make a handwritten or holographic will. So, depending on your state, you could write your own will on a napkin if it is entirely in your handwriting and has your signature and date. But don’t do that! Handwritten wills are often challenged and hard to prove in probate court. Your family members won’t appreciate trying to probate a napkin.
What Makes an Online Will Valid?
The elements of a valid online will include:
- Legal capacity
- Testamentary capacity
- Proper execution and witnessing
Do You Have Legal Capacity to Make a Will?
Legal capacity means being an adult or an age that your state allows you to make a will. In California, you must be 18 years old. However, in Louisiana, a 16-year-old can make a will. In Texas, the age is 18 unless you are or have been married or are in the armed services. So long as you meet your state’s age requirements, you may make a will.
Do You Have Testamentary Capacity to Make a Will?
Testamentary capacity means you have a “sound mind.” But what does a sound mind mean? States use different terms such as “sound mind,” “sound and disposing mind,” or “sound and disposing mind and memory.”
No matter what the term is, the test of a sound mind is:
- Are you aware you are making a will and what that means?
- Do you know what property and assets you have?
- Do you know who your natural beneficiaries (next of kin) are?
The will is still valid if you make a will with testamentary capacity but later develops dementia or Alzheimer’s disease.
Is The Will Executed and Witnessed Properly?
Each state has its own laws on how to execute a valid will. Most states require two witnesses. Many states also allow self-proving affidavits in which a notary certifies that you and your witnesses signed the documents.
Can Someone Challenge My Online Will?
Yes, someone can challenge your online will. However, it is unlikely they will be successful. Wills prepared online are subject to the same challenges as wills drafted by an attorney.
First, the person challenging the will must have “standing,” meaning they have some stake in the outcome. Only a spouse, child, heir, creditor, or someone named in the will can challenge a will.
Then the challenger must prove the will is invalid. The most common will challenges are fraud (forgery), duress, and undue influence.
Fraud
Fraud can include forgery or tricking you into signing a will that you thought was something else or giving false information that influences your decisions. For example, your daughter could sue for fraud if you disinherited her because your son falsely told you that she “hated you and wanted to put you in a home.”
Duress
Duress includes emotional duress or threats of physical harm. For example, a family member could threaten to kick you out of their home if you didn’t make them a beneficiary.
Undue Influence
Undue influence is hard to prove. You may have a daughter that cares for you, handles your medical and financial decisions, and looks out for your best interests. That is not a case of undue influence. Examples of undue influence are if an attorney makes your will and gives themself a gift from your estate. But facts matter. For example, it wouldn’t be undue influence if the attorney is your daughter and you wanted to give her a gift.
Although will contests do happen, they are extremely rare. Less than 1% of wills are challenged, and even fewer are successful. And the issues raised are the same whether you create your will online or with an attorney.
How Do I Make a Will Online?
You can make a will by finding a fill-in-the-blank form on the internet or by using an online estate planning service company.
Fill-In-The Blank Forms
Preprinted or fill-in-the-blank forms offer a template to fill in basic information. The advantage is that you may find a low-cost or “free” form. However, you may not be able to customize it for your family’s situation. Additionally, many fill-in-the-blank forms are not state-specific and don’t offer guidance.
Online Estate Planning Forms and Service Companies
Online estate planning forms and service companies usually have a step-by-step guided questionnaire. First, you answer questions about your final wishes. Then those answers go into a final document. Finally, you print the document and sign it in front of witnesses and a notary, if required. These services often are:
- Low-cost
- Convenient, allowing you to do it from home
- Easy to fill out with the help of a guided questionnaire to customize a will for your specific situation
- Easy to understand with explanations, definitions of terms, and instructions for proper execution in your state
However, using a service like this is typically not free, and it may still not be ideal for people with complicated family situations.
How Do I Choose an Online Estate Planning Service Company?
Not all online estate planning service companies are the same. Here are some questions you might ask when comparing online will-maker companies:
- Did attorneys develop the forms to comply with state law?
- Do attorneys monitor changes in estate and trust laws?
- Do they provide a questionnaire with explanations?
- Are you instructed on how to sign your document according to your state law?
- Does the company stand behind its product with a money-back guarantee?
- Do they offer a chance for you to revise your documents?
When Shouldn’t I Use an Online Estate Planning Service?
Online estate planning services are a great option to complete a simple will other critical estate planning documents, such as a health care power of attorney, living will, or financial power of attorney. In fact, with the rise of online will maker services, there is an increase in young adults thinking about their estate plans.
However, there are certain situations when a DIY or online solution is not appropriate:
- You have a blended family or stepchildren
- You have a child with special needs
- You need an irrevocable or living trust
- You have significant assets and a high net worth
- You need special estate tax planning help
- You need specific legal advice, for example, like having questions about your minor children
It is best to consult a local estate planning attorney if you have any concerns. Otherwise, online will services are a great low-cost, convenient solution to getting your estate planning done and giving you and your loved ones peace of mind.
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