January 17, 2008

Ask The Lawyer

Form wills online may create issues of misunderstanding

This week's question:
I keep seeing ads on TV and online about LegalZoom.com and Quicken Will Maker. The Legal Zoom ad talks about wills for $69. That sounds like a pretty good deal to me, but I was wondering what you think about it. It seems to me you can’t really go wrong with $69.

Lori L.
Almaden Valley


Dear Lori,
In order to make a long story short, Lori, I do not think very much of any $69 will. I will be happy to explain just why I feel that way. Then you make your own decision.

A will is obviously an important legal document, one of the most important legal documents most consumers have during their lifetime. And if things are not done properly, disastrous results can happen to the consumer.

I guess it comes down to whether you are buying a product or a service when you are talking about wills. You actually need much more that a packet of papers that you fill out and then hope that it works. You as a consumer need general advice from a qualified legal representative and only your own attorney can help you with this.

For example, let’s say you buy that will packet for $69. You fill it out exactly as the instructions say to do, with two witnesses and the whole thing. You read all the disclaimers. It even says that it’s a good will for California residents. You sign it and the witnesses sign it and you think you are all set to pass on. You, like all of us, eventually do in fact pass on.

Your son then comes in to see me with the form will and explains the situation. The first question is about the house you had in joint tenancy. You were totally unaware that joint tenancy passes by operation of law to the surviving joint tenant and that surviving joint tenant is your daughter and not your son. Your will said one-half of everything to your son and the other half to your daughter. There is nothing I can do about joint tenancy. So, I have to say to your son, sorry, the house goes to your sister. There is nothing I can do.

Or let’s say that you sign that $69 will and think that everything will be fine. You die and everything in your name must go through probate court at 191 North First Street, San Jose, Department 15 at present. That is if you live in San Jose. The probate procedure will take one to two years in all probability to finish and along the way your family will have thousands of dollars in probate attorney’s fees, administrator fees, bond fees and related items. Does that $69 will still sound like a good deal?

Now, had you invested in a living trust you would have avoided all of the probate fees, lost time, stress and other problems. In the short run you may have thought that $69 will was a good deal but in the long run I’m not so sure.

And if that is not enough, talk with your CPA or tax advisor about the dangers of capital gains tax with joint tenancy property that is not covered by the will. Don’t take my word for it. The $69 will that you thought was such a bargain may cost you big time in capital gains tax; perhaps thousands of dollars.

These are just a few examples of why it is so much better for the consumer to invest a little more money in competent legal service. When you are thinking about your will or trust, you are not buying a product but investing in a service for your own best interests. If you think that I am just trying to drum up business for the legal profession, I am sorry you feel that way. But I do need to be honest and tell it like it is. I would of course say the same thing for my family and friends everywhere.

I am not saying that all will or trust packages are bad. Some may be OK, but I am not sure. I just know that what is best for you is good legal service. Try to resist the temptation to do it the cheapest way. Strive for excellence in your will or trust planning.

I hope it all works out well for you, Lori. Best wishes in your decision-making.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.