The hidden costs of a DIY will: Why professional assistance matters

In brief: When it comes to preparing your will, you may be tempted to save money by using a will kit found at a local post office or newsagency, or by drafting one yourself, perhaps with the assistance of a family member. 

While this approach might save you money upfront, it can create significant complications, stress and costs in the long run for your family and your intended beneficiaries.  

The importance of Probate

When you pass away, the executor appointed under your will must apply for a grant of Probate. Probate is the process of proving that a document meets the formal legal requirements to be your last will and testament, including that it was signed and witnessed correctly. This process is typically administered by the Probate section of the Supreme Court in the relevant state. 

It is not uncommon for a DIY will to fail to meet the legal requirements or to be unclear. If this occurs it will be at the discretion of the Court to determine how your will is to be interpreted or whether it is valid at all. 

If the document you consider to be your will is determined to be invalid, your estate will be distributed in accordance with the relevant law of your state, which will not take your wishes in to consideration. 

If the will is unclear, it may be interpreted by the Court in a way that you did not intend. In those circumstances, your executor may be required to undertake the costly and complicated process of proving your intentions to ensure that your wishes are carried out for your intended beneficiaries. 

Risks of DIY wills

There are several additional risks associated with DIY wills, including:

1. Suspicions of coercion or lack of understanding

Accusations of an unscrupulous family member or trusted person coercing you into creating a will or failing to understand your true intentions can strain relationships, regardless of whether the suspicions are well-founded. 

It is also a fundamental requirement that a will maker knew and approved the contents of their will, which includes the will maker understanding the effect that their decisions will have so as to ensure that it reflects their true intention. 

2. Confusion over assets

DIY wills can create confusion about which assets can be dealt with by a person's will and which assets cannot be dealt with without additional documentation, such as superannuation, jointly held assets and assets held in family trusts. 

3. Misplaced Wills

Homemade wills are often stored at home and can be easily misplaced, lost or deliberately destroyed by someone who disagrees with the contents or who may benefit from your estate if it was to be distributed in accordance with the law of intestacy. 

4. Unintended tax consequences

DIY wills may lead to unintended and potentially disastrous tax consequences when distributing assets among beneficiaries. In the alternative there are strategies that can be implemented to potentially minimise tax substantially that your beneficiaries will not be afforded without careful consideration.  

The benefits of engaging a solicitor

Engaging a solicitor to assist you in preparing your will can help ensure that it is clear, unambiguous and meets all legal requirements. A solicitor can also provide guidance on what assets form part of your estate and prepare additional documentation, where necessary, to ensure non-estate assets pass in accordance with your wishes. Solicitors also often offer secure storage options for your will, and if you choose to store it yourself, they will have a copy in case the original cannot be found. 

While a solicitor's services may cost more than a DIY will upfront, the peace of mind you gain by ensuring your loved ones are not burdened with a poorly drafted will far outweighs the initial expense.