I present between fifty to eighty seminars every year on various topics of elder law. When I present on a topic such as estate planning or Medicaid planning, audience members invariably ask me questions, and it is often from those questions that I chose the topic of this weekly column.
My thinking is, if one person asks a question there is probably a large number of other people who would like to ask the same question but don’t for whatever reason. More likely than not, they don’t want to appear dumb. But that’s why someone created the adage, there are no dumb questions, just dumb answers.
One question I tend to get is, can I write my own Will? Or, a variation on the question, is there a place where I can buy these documents (meaning, Wills, powers of attorney, living wills) you’re talking about?
The short answer is – yes, you can write your own Will. There is nothing in the law that prevents an individual from drafting his or her own Will. For that matter, there is nothing that prevents a person from representing him- or herself in a personal injury suit or in defending against a criminal charge. You can act as your own lawyer, you just can’t serve as a lawyer for another person, unless you have attended law school and passed the State’s bar examination.
But representing yourself, whether in a personal injury suit, a criminal trial, or in drafting documents, brings another adage to mind – he who represents himself has a fool for a client. Wills may appear to be simply documents. Most people believe that their Will is a “simple Will.”
Yet, I’ve found myself spending quite a bit of time going over matters with my clients and making changes to their “simple Wills.” Quite often, when people say, “it’s just a simple Will,” their Will is anything but simple.
So, the legal ability to draft a valid Will for yourself and the advisability of drafting your own Will are two separate questions. New Jersey has made it very simple for you to draft your own Will. New Jersey has a “holographic will” statute.
The holographic Will statute allows a person to draft their own Will, and as long as the material provisions of the Will are in the person’s handwriting and the person signs the Will, the Will is valid. In other words, you could write-out your own Will tonight while you’re watching television, and that Will would be valid and enforceable.
And, let’s not forget that a number of stationary stores sell form Wills, powers of attorney, and living wills. A person could go down to any of these stores, buy the form packet and draft all of their own estate planning documents. Although I’ve never priced these stationary store documents, I would venture a guess that they cost no more than $20. So, you would save money compared with having an attorney draft these documents for you.
Or would you? Remember the “fool for a client” adage? Writing a column for a newspaper means that my words reach thousands of individuals. My readers may be carpenters, electricians, plumbers, doctors, police officers, accountants, computer technicians, or one of a thousand other professions.
Believe me when I tell you that you would not call me to fix an electrical problem at your house. I struggle to change a blown fuse. Yet, I’ve seen booklets at hardware stores that are designed to help me perform electrical work. I guess I could buy one of those booklets, study it, (pray), and try fixing the problem myself. My guess is, I wouldn’t fix it correctly, and I’d end up calling an electrician to fix the initial problem and to fix my work.
The problem with drafting your own estate planning documents is – if you draft these documents incorrectly, it’s going to be very difficult to correct your mistakes. For instance, if the mistake is in your Will, the mistake may not be discovered until after you have passed away. You won’t be around to tell your beneficiaries what you meant.
In sum, you can draft your own Will, you will probably save money in the drafting process, but you may cost your estate far (far) more money than you saved by drafting your own Will.