Why should I work with a lawyer to prepare my Will?

Originally posted April 29, 2021

This might be one of the most common questions we receive from people looking to prepare a Will for the first time. Our FAQ page has some answers but this post expands on the reasoning provided there.

As a starting point, a lawyer is not strictly required to create legally binding estate planning documents in Alberta. Alberta residents can create legally binding Wills (or Enduring Powers of Attorney or Personal Directives) without a lawyer, so long as the proper formalities are followed (this is key). Options that people often compare to working with a lawyer include: writing a Will themselves, purchasing a Will kit, or using an online Will preparation tool.

Note: Be particularly aware of Will kits that include printed pages for you to fill-in-the-blanks by hand. These do not comply with the law in Alberta and will cause issues and expenses for your estate (and in the end, they may not even be able to be probated).

…so if I can make a legally-binding document on my own, why would I spend the money to work with a lawyer?

(1) Working with an estate planning lawyer is very likely to save you money in the long run.

The only advantage of a do-it-yourself option is price. We agree with the creators of DIY products that too few people have Wills and affordable options are needed. (This is why it is our mission to offer reasonable flat rates.) We understand that it is not inexpensive to have a lawyer prepare your documents, but a poorly drafted Will could potentially result in a significant output of time, money, and stress for your loved ones after your death. Even if a DIY Will could be probated without issue, there may have been a way to structure things that would have resulted in getting more money to your beneficiaries.

 Note: Many DIY products include a disclaimer that the final product must be reviewed by a lawyer to ensure it will be effective. It is extremely important to consider that it would likely be a similar price (if not more) to pay a lawyer by the hour to review that document in full & prepare a list of comments and recommendations ... compared to paying a flat rate for a lawyer-drafted Will. If you can even find a lawyer that would not decline to do such a review. Modern Wills does not do such reviews as we would be taking on the liability of providing you advice without giving you an end-product that we stand behind.

(2) Estate planning law is more complex than most people realize.

Compared to other legal services, we find many people underestimate the complexity of will-drafting. Having an effective Will is about so much more than saying you want everything to go to your children and following the required formalities for signing. Estate planning laws and best practices are continuously evolving, and estate planning interacts with almost every other area of law (tax law, family law, business law, etc.). It is a full-time job keeping up (literally in our case). Estate planning lawyers will ask you questions about your overall estate plan and let you know when they recommend that you seek advice from another professional. In doing this every day, we get to hear about all the ways things could go terribly wrong. We want to prevent those things from happening to you and your loved ones.

Note: When working with a lawyer, we always discuss the importance of not only planning for death, but for possible incapacity. We include incapacity planning in the process – so our flat fee would include an Enduring Power of Attorney and Personal Directive (for what works out to be a very low additional cost).

(3) Working with a lawyer is the only way to get advice (or even to simply discuss options available in the context of your personal circumstances).

Other options may provide sample documents and legal information but only a lawyer can provide legal advice (i.e., apply the law to your personal circumstances). Lawyers can not only discuss what is most common, but can tell you all options available and discuss the pros and cons of each option with you, in the context of your exact circumstances. Lawyers can also tell you when something might not work as intended and suggest other ways to achieve your end goal. There may be a simple way to achieve a wish of yours that would not be covered by the standard options included in a DIY product. You may not realize that certain information should be included in a DIY option. This is the biggest reason to work with a lawyer. We will likely think of options and considerations that you were not aware of, and we will provide objective advice.

Note: An online will-prep tool should guide you through the main topics to consider and instruct you as to how to sign (two witnesses, etc.). It should have standard clauses that are worded effectively. But it cannot give you advice as to whether a certain clause is appropriate for you. And even more importantly – it cannot explain to you the variety of options available, nor make a recommendation based on your personal circumstances.

(4) Working with an estate planning lawyer protects your plan.

After you die, people can challenge the validity of your Will. Such challenges are almost never anticipated but, if you can foresee someone taking issue with the contents of your Will, working with a lawyer becomes even more important. If a Will that was prepared by a lawyer is challenged, the lawyer’s notes will be reviewed by the Court (and if the lawyer is still around, they may be asked to testify). The notes and testimony will help to confirm that the Will is valid and accurately reflects your wishes. Additionally, if a lawyer prepares your Will, they are required to take precautions to ensure you have capacity to make a Will and that you are not doing so under duress or undue influence from another person. They would be able to speak to the precautions taken if your Will is challenged in that regard.

(5) Working with an estate planning lawyer protects your assets.

If you draft a Will yourself, or pay a company that is not a law firm for the use of their software, you (or your estate) will have no recourse if things do not work as planned. The cost of fixing the mistake would decrease the amount going to your beneficiaries. Lawyers should not make major errors, but they also have professional liability insurance to protect their clients if a mistake occurs.

Note: Do you need to sign documents remotely? The way the law currently stands in Alberta, to have a proper, legally binding Will that was signed via video conference, you will have to receive legal advice and have a lawyer as one of the remote witnesses.

In the end, it is similar to any other personal service. You can do your own taxes. You can manage your own investments. You can install your own kitchen cabinets. You can give yourself a haircut. Whether it would be a reasonable choice to do so will vary from person to person. Generally, a hiring a professional should lead to a better end-product and, hopefully, make the experience smoother, less stressful, and less likely to cause issues in the future. This extends to any profession. You could do it yourself, but you certainly do not have to - and most often, it would not advisable to do so.

As always, we are happy to answer any questions and/or discuss whether Modern Wills would be an appropriate fit for your circumstances on a free consultation (phone or video). If price is your main hesitation, we may be able to set up a payment plan, depending on your circumstances; please do not hesitate to reach out.

The post contains legal information of general applicability. It is not legal advice to any one person. It does not account for your personal circumstances. Do not rely on the information above; seek personalized legal advice. We do out best to ensure this information is accurate as of the date of publishing however, we will not update this information going forward.