Many Americans take pride in being “do it yourselfers” but where do you draw the line?  Do it yourself estate planning is an option, but before you take this road, realize the risks of doing so.

As you plan your own will, the key is to realize that the only way your wishes can be legally binding is if the will and other estate planning tools you use actually follow the law. In other words, small mistakes, even pen scratches on the document, can make it voidable. This is not what you want to occur and with the aid of an attorney, you can create a legally binding will you do not have to worry about.

Common problems with DIY estate planning

A DIY estate plan is one you put together yourself, usually without any help from your attorney. Here are some common problems associated with these types of wills.

• You may make mistakes in the actual document’s creation. A variety of factors plays a role here, including the creation of the will itself. If you do not follow the requirements of your state to create the will, it is not likely to be upheld.

• You may make decisions or details in the will that are not legally possible. For example, you may be unable to give assets to some of your heirs if those assets are to be split between your spouses. Your state’s laws on marital property play a role here.

• You may not have the will legally notarized, or there may be others contesting the will’s validity. This often occurs when the person who witnesses the document, or helps you to create it, is mentioned in the will. To safeguard your wishes, realize that you need a third party not mentioned in the will to actually craft it to ensure that the will is not contested in court.

Is the risk worth the reward?

The fact is, do it yourself wills and estate plans are something many people are actively researching and considering. However, one simple reason is enough to keep individuals in check. That is taxes. Taxes are complex and ever changing. Anything you include in your will is likely to be a step you take to minimize the amount of taxes your estate has to pay.

If you do not take steps to actually create an estate plan that minimizes taxation, all of your wishes and hopes may become nothing more than hopes. With the aid of an attorney, on the other hand, you will spend some money on the planning but gain the peace of mind from knowing your estate is protected and your final wishes can be carried out.

What Congress gives in the recent changes to estate law, Congress can take away. Remember that the new law is in effect for only two years. So, if you are looking for a way to protect your estate no matter the future changes in the law, it is a good idea to talk to an experienced estate planning law firm.

Important changes in the new estate laws

The new estate tax law passed for 2011 is actually an extension of the so-called “Bush tax cuts” except that the new law includes a provision allowing married people pool their estate tax exemptions – a feature widely known as “portability”.

What this means is that a surviving spouse can keep his or her own $5 million estate tax exemption and add any portion of the exemption that was not used by the deceased spouse. This is a new provision.

The question becomes what does this change really mean to previous estate planning and should people and families change their estate plans because of this additional portability.

The short answer is no.

Understanding portability

Here is an example of how portability works:

A spouse dies with an estate valued at $8 million. He or she has made $2 million in lifetime gifts. Now, the surviving spouse can use $3 million in unused estate tax exclusion and add their own $5 million for a total $8 million exemption.

The problem is that the rules are only in effect for two years.  And unless you are expecting to pass away before then, no one should change their plans for some potentially temporary reason.

The other problem is that mere portability does not address the totality of estate planning. Setting up a trust, on the other hand, can clear the issues revolving around the total exemption amounts for both spouses, including items like appreciation and credit protection.

Professional estate planners and attorneys will advise that relying on portability as a definitive benefit to the estate is not well advised since it can change at any time by Congress.

Find out more about why estate planning, estate tax and probate are still important in Virginia, after the most recent law changes by contacting Flanders and Wade today.