The promise of online wills is undeniable. Online programs offer people an easy way to write their wills. Online templates can be completed anywhere, at any time. There is no office appointment, no indiscreet questions from a lawyer about who is getting what. You don’t have to leave home and you don’t even have to get dressed.
I’m a law professor who teaches will and trusts, and I have no doubt that online wills are the wave of the future. I bought stock in the online will preparation company Legal Zoom when it made its market debut on June 30, 2021. But, despite my enthusiasm (and hopefully successful investment), online wills aren’t right for everyone, nor are they appropriate in all circumstances. Moreover, it is important to remember that simply filling out an online form doesn’t produce a legally binding will.
What’s great about online wills is the increased ease that they offer, which is significant in terms of making will-writing more palatable to people. Online wills are also important in terms of equity and opportunity. As many as 68% of Americans die without a will and, while reasons vary for this stunningly high number, one factor is likely lack of access to legal services.
People contemplating will-writing are understandably deterred by the daunting task of finding the right lawyer and the possible cost of the transaction. Online services like Legal Zoom, US Legal Wills and Nolo’s Quicken WillMaker & Trust pointedly advertise the low cost of their services and offer basic packages for a will starting at around US$90. Other websites, like Rocket Lawyer, advertise free will templates.
Wills are about more than just who gets what property.
Online wills have the potential, therefore, to bring wills and estate planning to populations that might not otherwise have contact with legal services – assuming that the person writing the will has computer and internet access. Similar tools for medical directives and living wills make end-of-life preparations more accessible as well.
State law is the bottom line
Increased accessibility, however, is only part of the story. One fundamental problem with online wills is that they are not valid unless they are properly executed according the state probate rules. Simply filling out an online form is not enough to create a valid will. Each state has specific rules for determining whether or not a will has been validly executed. For the most part, these rules require that the will be in writing, signed and witnessed by two people.
These requirements focus on the physical – physical documents and the physical presence of witnesses. The writing and signature requirements generally mean that a person must print out the online will and sign a hard copy, and the witnessing also needs to be done in person. States have begun to consider moving toward electronic wills, spurred on mostly by the new and…