Perhaps you've seen the ads on television and on the Internet. For less than $100 (sometimes a lot less), you can get a will. It may appear to be a good way to save money and time (one site says you can finish your will "in less than 15 minutes."
But along with the savings, there are plenty of risks.
The sites generally provide an online platform for customers to prepare their own legal documents by inputting data into a questionnaire. Using software and templated documents prepared with standardized language, the customers receive the final documents and can sign, execute and use them as they wish.
While some lawsuits have charged that the websites are engaging in the unauthorized practice of law (see right-hand box), the sites argue that customers fill in the blank documents themselves. It amounts to do-it-yourself law. And although non-lawyers are generally prohibited from providing legal services to the public, an individual is permitted to represent him or herself in legal matters.
Here are six reasons why wills prepared with online legal document preparation services — and without an attorney — may not be the bargain they seem.
1. Proper Execution. In order to be accepted by the court, a will must be properly executed. Under state law, certain strict signing and witnessing steps must be taken in a will signing ceremony.
For example, many states require the testator to declare to two witnesses that this is their will and it meets with their intent. If the required steps are not taken, a will could be ruled invalid and would be vulnerable to a challenge. An online will is not a good idea if you think your will might be contested. (Many states presume that a will is properly executed when an attorney presides over the ceremony.)
2. Disclaimers. Online wills generally contain lengthy disclaimers or terms of service. For example, a disclaimer may say the online service "does not provide legal services" and there is no guarantee that a will is accurate, complete, reliable or up to date with laws, regulations and administrative requirements. Although you may think you are getting a will from a company that is knowledgeable about the law, you may not be.
In addition, a disclaimer may say that compliance with laws is the sole responsibility of the person buying the online will and the online provider is not liable for any loss or injury resulting from the document
3. Less protection. Information shared with Internet will drafting services is not protected by attorney-client privilege. It is also not protected by the work-product doctrine, which provides that certain information collected or prepared in anticipation of litigation is not discoverable.
In other words, information you provide can be used against you in court.
4. Arbitration. If there is a problem, Internet services generally subject users to arbitration. You waive the right to go to court.
5. No attorney representation. An attorney is generally not involved in online will services, unless you pay extra fees. Some services advertise that they perform a "review" of wills but the documents are only checked for issues like grammar and spelling errors — not legal accuracy. Their customer service representatives cannot render legal or tax advice.
These websites often state in their disclaimers that their services are not a substitute for the advice of an attorney.
Online legal document services may make outside attorneys available for an additional fee under a retention agreement. But these attorneys are not affiliated with the online company and are paid separately.
6. No professional advice. Online wills are not written for your unique situation. They are one-size-fits-all documents. Attorneys provide estate planning advice tailored to a client's specific needs. In addition to a will, you may need a trust and other documents to fulfill your goals.
Standardized, generic legal forms may not address issues such as taxes, stepchildren, beneficiaries who are not blood relatives, divorce, an executor who doesn't survive you, business succession, property rights and much more.
A qualified attorney is familiar with the estate laws in your state and will work with you to ensure your final wishes are carried out.
A will is one of the most important legal documents you will ever have drafted. Any problems with a will may not be discovered until after your death when it is too late to revise it. Do-it-yourself wills may wind up being legally invalid -- do you want to take the chance?
There have been lawsuits challenging the legality of Internet legal document services.
For example, one class action suit filed in U.S. District Court argued that LegalZoom.com engaged in the unauthorized practice of law in Missouri.
The case was settled in 2011 with the online legal document service not admitting wrongdoing but agreeing to make revisions to its services for Missouri residents. (Jansen v. LegalZoom.com Inc., USDC, W. Dist. of Missouri, No. 2:10-cv-04018-NKL)
Another lawsuit was filed against LegalZoom by the executor of an estate in California. In that case, the legal document preparation service was charged with engaging in unfair, unlawful, deceptive business practices and practicing law without a license. The lawsuit charged the service "intentionally buried and concealed facts" about the risks. In addition, the lawsuit charged the service involved with elder financial abuse.
The parties agreed to settle the pending class action suit, although LegalZoom stated it wasn't admitting guilt, but settling to avoid protracted litigation.
Facts of the case: Katherine Webster was the executor of the estate of her uncle, Anthony J. Ferrantino, who purchased a document package from LegalZoom. It included a revocable living trust, a pour over will and a durable power of attorney.
Ferrantino "had cancer and knew he had few months to live," according to court documents. He and Webster believed the documents created online would be "legally binding, reliable and accurate" as well as "carefully reviewed" based on statements made on the website.
Webster presented the forms to the banks and financial institutions where Ferrantino's money was held in order to transfer the accounts to the living trust. But the institutions did not accept the forms as valid. So the living trust was not funded before Ferrantino died.
Webster called the online service but received no help. She hired an estate planning attorney, who discovered errors with the execution of the documents. The attorney eventually was able to petition the probate court to permit post-mortem funding of the living trust.
The estate "paid the attorney thousands of dollars more than it would have had Mr. Ferrantino never purchased LegalZoom's services and gone to an attorney in the first instance," the lawsuit states. (Webster v. LegalZoom.com Inc., Los Angeles County Sup. Ct., BC438637)
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