A will is a legal document created and signed by an individual known as a “testator.” It is created to distribute the person’s property and assets upon death.
An online will is a type of will that has been created through the use of an online legal document service. It has been downloaded from a website, printed out, or created on a website and then downloaded. This new phenomenon has been introduced mainly through online legal form websites.
Online wills allow a person to create, modify, and save a will document through various form templates that the person fills out. Creating an online will can have some advantages over a traditional will, though there are also some disadvantages to consider.
An online will can be created in a few different ways. Some websites might ask questions and then fill in a state-specific template with the answers. Other websites provide forms that allow people to fill in the blanks with their personal information.
Once downloaded, the will is printed so the testator and witnesses can sign it. Some websites will store the will for a fee, making updating easier.
Are Online Wills Legally Valid?
A will that is created through an online website can be legally valid. However, it must still satisfy state law requirements for a will to be valid. The requirements for drafting a will can vary by state; however, they generally require:
- The testator has legal capacity (i.e., is 18 years old in most states) to form a will
- The testator has the mental capacity to write a will. This means that the testator knows they are writing a will, knows what their property consists of, and knows to whom they are giving each gift in the will
- The testator is of sound mind (this is generally meant to exclude people with dementia or other similar cognitive problems that render them incapable of understanding what they are doing when they make a will)
- The testator names an executor. An executor is the person who will manage the estate after the person dies
- The will includes a statement indicating that the document is indeed a will
- The will is signed and dated by the testator
- The will has been formally witnessed by 2 or 3 people. These people must be “uninterested parties”; that is, they don’t stand to gain or receive something through the will
An online will is invalid unless it meets all these requirements. Simply filling out the form online will not give the will full legal effect and validity. For example, once it is written, the will still needs to be formally signed and properly witnessed, which involves at least 2-3 other people (the number of witnesses required depends upon state laws)
What are Some Issues With Online Wills?
One issue with creating online wills is that of “competency.” Under state law, a person must have both the legal capacity (i.e., over 18 years old in most states) and the mental capacity to create a will. This means they should be able to make important legal decisions on their own and understand the effects of those decisions generally. If this is not the case, then the will cannot be considered valid.
In other words, even though will forms are accessible to most people online, that doesn’t mean everyone can create one. The person (the testator) needs to be old enough and capable of understanding how the document will affect their estate and assets. With an online will, there may be no one present at the time of signing the will who can evaluate the testator’s competency.
Privacy and security are another unique issue with online wills, not usually found in normal will documents. Since digital wills are accessed, filled out, and stored online, they can be subject to internet theft, tampering, and fraud. You may wish to withhold sensitive information unless you’re sure it won’t be subject to these violations.
Finally, online wills generally still require the assistance of a will, trust, or estate attorney, especially if the testator has a large estate or particularly valuable items of property that they wish to distribute.
What are Some Common Online Will Disputes?
Since an online will document can be valid just like a traditional will document, it can also be associated with conventional will disputes and legal issues. Disputes and legal contests that can arise in connection with any will include:
- Disputes over which beneficiaries receive which items of property. This is a common dispute amongst relatives and friends of the deceased person
- Conflicts regarding the selection of the executor or the removal of an executor in favor of a different person.
- Will contests — that is, legal disputes regarding the overall validity of the online will document. For instance, a relative might try to claim that the will is invalid because the testator lacked the proper capacity to form the will
- Issues with duress or coercion. For instance, it may be alleged that the testator was forced to create the will in a certain way under threat of harm or injury by someone insisting that they receive a specific gift or amount of money
- Legal conflicts over a specific item of property. For instance, when two or more family members dispute ownership over a highly valuable family heirloom or piece of jewelry
Will conflicts are serious problems and can often be quite complex, especially if the testator has already died. In such situations, it can be difficult to determine what the testator’s original intentions were. Thus, it is important to ensure that a will document (especially an online will) is drafted in a clear, unambiguous way and provides exact details regarding the testator’s true intentions.
Should I Hire a Lawyer if I Need Help With an Online Will?
You should consider bringing a draft of your proposed online will to a will attorney and ask them to inspect it. An experienced estate planning attorney will know people’s most common mistakes when creating an online will and can help you avoid those errors. They will also be able to identify aspects of your situation that an online template with minimal personalization cannot address.
A local attorney can provide advice specific to your situation and ensure your will meets the requirements of your state’s laws. They can also check for conflicting language and verify that the document is thorough, complete, and likely to face legal challenges. Also, your lawyer can help represent your interests in court if a will dispute or conflict arises, or someone challenges your will’s validity.
If you are taking the time to make a will for after you die, naturally, it is important that your wishes are carried out the way you want. Having an attorney review your will decreases the risk that your estate will not be handled as intended. Online wills might save you money upfront, but there is no substitute for experienced legal assistance.
