A do or DIY situation? Creating your own will carries some risks

Chas Rampenthal expects to get more business in the wake of Michael Jackson’s death, but he doesn’t peddle CDs, posters or celebrity memorabilia.

Rampenthal sells online wills. And as general counsel of LegalZoom.com, he noticed a sharp uptick in demand when model Anna Nicole Smith died in 2007, triggering a messy battle over her estate.

“All that publicity reminded people they should have an up-to-date will,” he said.

The same could happen as Jackson’s estate gets sorted out. Experts in the field agree that it’s important to have an up-to-date will, and probably also a trust, to ensure that whatever you have left over when you die goes where you want, whether to family members, outsiders or charities. Otherwise, the state takes over and doles out the estate according to law.

Also, a properly written estate plan can avoid the legal process of probate, which can drain funds from the estate.

The cost of using an attorney to put together a comprehensive estate plan starts at about $1,500 and can skyrocket from there, depending on how complicated a person’s finances and situation are.

It’s perfectly legal to produce your own will, however, without a lawyer, and the cost for that starts at $0.

In California, a handwritten will is legal, as long as it’s completely handwritten (no typing or forms allowed) and has a valid signature. It doesn’t even need to be dated or signed by witnesses, although those measures could help if the will was challenged.

Otherwise, non-attorney wills can be done with the aid of books, CD-roms and websites (those will need to be dated and witnessed).

But it is advisable to go the DIY route?

“You can certainly have situations where using form documents, without an attorney, works just fine,” said Robert Sacks, a Los Angeles attorney whose firm handles battles over wills and trusts, but doesn’t produce the documents.

As long as the situation is straightforward and highly unlikely to bring on challenges.

“Let’s say you are happily married, 30 years old, and have two kids, and all you want to do is leave everything to your spouse, and if he or she goes first, then to the kids,” said Eric Rakowski, a professor of law at UC Berkeley who teaches wills and trusts.

“Then it would probably be OK to use forms. But there are risks.”

Online packages sold by LegalZoom.com start at $69 and go up to $119 -- at the higher price level you get same-day processing if you need that will quick.

For that, Rampenthal says, customers get a will-making process designed to catch mistakes and clearly express the wishes of the user.

But doing it yourself isn’t for everyone, he warned.

“If the person is very wealthy, if there are a lot of interwoven business assets,” he said, it’s best to see a lawyer. Also, if you want to leave a close relative out of your will or impose conditions, you should see a professional.

“If you want to disinherit your wife or a child, that can be tricky,” Rampenthal said. “Or for contingencies, like your daughter gets the money if she gets married.

“Or worse, she gets the money if she divorces her current husband.”

A situation that’s not straightforward can invite trouble in the form of a challenge to the documents. At that point, help from an attorney who created the estate plan could be a lifesaver..

“The documents are more easily challenged if you have not gone through an estate-planning process with an attorney who can testify you were competent, and this is what you wanted done,” Sacks said.

Sacks recalled a case where a niece helped her elderly aunt write a will online. The new document gave the niece most of the inheritance, and beneficiaries of a previous will challenged the document in court, he said.

Sacks, who represented the niece, argued that there was nothing awry because the niece had served as the woman’s caretaker in later years. But the niece lost, and the old will stood.

“If an estate-planner had been involved and could say these were the woman’s wishes and it was done without undue influence, there likely would have been a different result,” Sacks said.

Of course, having a lawyer around as a witness is good only if he or she doesn’t die before you do.

“That happens,” Rakowski said.

It’s just another reason to keep a will current.

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