Are Online Wills Legal?

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 What is an Online Will?

An online will is a legally binding document that outlines the distribution of an individual’s real and personal property upon their death. This document can be generated by downloading it from a website, printing it, or creating it directly on a website and then downloading it.

The process of creating an online will can differ from one platform to another. Some websites offer a questionnaire that collects relevant information before populating a state-specific template, while others provide fillable forms for users to input their personal details.

Once the online will has been downloaded and printed, the testator and witnesses must sign the document to finalize it. Some websites offer a storage service for a fee, making it easier for users to update their will as needed.

Are Online Wills Legal?

An online will is considered legal as long as it adheres to the requirements set forth by the state where the will is executed.

Some states recognize holographic or handwritten wills signed only by the testator, while others require a specific number of witnesses to sign the document.

Certain states require witnesses to be “disinterested” parties, meaning they have no stake in the property or assets mentioned in the will.

Different states also have different rules concerning the placement of signatures on the document. While many states require the will to be signed at the end, others allow the signature to appear anywhere within the document.

Is My Online Will Valid?

The validity of a will is determined by whether it meets the requirements of the state where you reside, regardless of whether it was prepared online or by an attorney.

There are some universal rules that apply in most cases:

  1. Intent: The person creating the will must intend for the document to serve as their last will and testament, governing the distribution of their property upon their death.
  2. Testamentary Capacity: The person making the will must be “of sound mind,” which typically means they are at least 18 years old, understand that they are creating a will, and are aware of the property they possess and the implications of distributing it.
  3. Free from Fraud, Duress, Undue Influence, or Mistake: The testator must not be manipulated, coerced, or deceived into creating the will or distributing their property in a specific manner.
  4. Signed and Dated: The will must include the signatures and dates of both the testator and the witnesses.

Even a legally valid will can be contested or challenged. If you have a complex estate, numerous assets, or multiple beneficiaries, using an online will may not provide sufficient protection against potential contests. Tax implications, financial considerations, retirement accounts, investments, and co-owned properties may not be adequately addressed in an online will either.

How Can an Online Will Be Contested?

An online will can be contested in the same way as any other will. When a will is contested, it means that someone believes that the document does not represent the true intentions of the deceased or that it does not meet the legal requirements for a valid will.

Here are some common reasons why an online will might be contested:

  1. Lack of capacity: If the testator (the person making the will) does not have the mental capacity to understand the nature of the document and its consequences at the time of making the will, it can be challenged.
  2. Undue influence: If it is believed that the testator was coerced or manipulated into making the will against their own wishes, it can be challenged.
  3. Improper execution: If the online will does not meet the legal requirements for proper execution (e.g., proper signature and witness requirements), it may not be considered valid.
  4. Ambiguity: If the language used in the will is unclear or ambiguous, it may be open to interpretation and subject to legal challenge.
  5. Fraud: If it is believed that the online will was created under fraudulent circumstances (e.g., the testator’s signature was forged), it can be challenged.

The likelihood of a will being contested increases when it is created without the assistance of a lawyer, as online wills may not address certain legal requirements or personalized situations.

What Happens if My Online Will Is Invalidated?

If your online will is invalidated, it means that the court has determined that the document is not legally enforceable. In this case, the laws of intestacy in your state will determine how your property is distributed.

Intestacy laws vary from state to state, but generally, they prioritize distribution to a surviving spouse or children. If you have no spouse or children, your property may be distributed to other family members or, in some cases, the state.

Intestacy laws may not reflect your wishes for the distribution of your property and may not account for special circumstances, such as providing for a disabled child or ensuring the care of a beloved pet. This is why it is so crucial to have a valid and properly executed will in place.

How Does the Intestacy Process Work?

When a person dies without a valid will, the distribution of their property is determined by the laws of intestacy. Intestacy laws vary from state to state, but they generally prioritize the distribution of property to a person’s closest living relatives.

Here is a general overview of how the intestacy process works:

  1. Probate: If a person dies without a will, the probate court will appoint an executor to manage the deceased person’s estate. The executor is typically a close family member or friend.
  2. Identification of heirs: The executor will work to identify all living heirs of the deceased person, which may include a surviving spouse, children, parents, siblings, or more distant relatives. The court will determine who qualifies as an heir under the state’s intestacy laws.
  3. Distribution of property: Once all heirs have been identified, the court will distribute the deceased person’s property according to the state’s intestacy laws. Typically, property is distributed first to the surviving spouse and children, with the share of each determined by the laws of the state. If there is no surviving spouse or children, the property may go to parents, siblings, or more distant relatives.
  4. Payment of debts and taxes: Before any property can be distributed, the executor will need to pay any outstanding debts or taxes owed by the deceased person, including funeral expenses, medical bills, and other debts.
  5. Closing the estate: Once all debts have been paid and the property has been distributed, the executor will close the estate.

If your online will is invalidated, consult with an attorney to discuss your options for creating a new, valid will that accurately reflects your intentions and meets the legal requirements in your state.

Do I Need Help From a Lawyer to Create an Online Will?

Absolutely. It is best to have a will attorney review your online will draft and provide specific advice relevant to your circumstances. Having a lawyer look over your draft ensures that your will satisfies your state’s legal requirements, is comprehensive, and does not contain conflicting provisions that could be legally contested down the road.

An experienced will lawyer can help you avoid common mistakes that people make when using online will templates and provide insight into areas that a generic template may not address.

If you are putting thought and effort into creating a will and planning for after you pass, take the extra step to make sure your wishes are fulfilled as intended. By having a lawyer review your will, you reduce the possibility of your estate not being handled according to your desires.

While online wills may appear to save money initially, professional legal advice is irreplaceable.

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