If you’re one of the millions of Americans without a will, you may wonder whether you can use a generative artificial intelligence program like ChatGPT to create one.
“Can AI draft a will? Absolutely. But the better question is: Should you use it?” says Vanessa L. Kanaga, an estate attorney and CEO of InterActive Legal, a company providing estate law software to law firms. “At this stage of AI, I would not recommend to anyone to rely on AI for their will.”
Kanaga qualifies her comment, saying that, for very simple cases, an AI-generated will might be better than nothing — as long as it’s valid.
[What Is Probate and How Does it Work?]
Your AI-Created Will Might Not Be Enforceable
Many homeowners take on do-it-yourself projects, but at a certain point, they know when to call in a professional. “It’s the same thing with drafting a will,” Kanaga says. “It looks straightforward, but you don’t necessarily know all the pitfalls that could lead to the will being invalid or challenged or not doing what you intended for it to do.”
To protect estates from false claims, state laws set highly technical requirements in order for someone’s will to be valid. Just one mistake can mean that a court must invalidate a will, says Imaan Moughal, a trusts and estates associate at the New York law firm Manice, Budd & Baggett LLP and an adjunct professor of estate law at Hofstra University’s law school.
Getting the formalities right is so critical that full-time estate lawyers will routinely have other lawyers and paralegals check their work, Moughal says. But a nonlawyer using AI shoulders all the responsibility on their own. “My fear is that something could be quickly overlooked,” she says. That’s all it can take for a will to be thrown out.
What Happened When an Estate Attorney Used AI to Write Her Own Will
Kanaga recently experimented with having ChatGPT draft her own will to see exactly what it could deliver. As CEO of a company that provides estate law software to law firms, Kanaga understands both estate law and how attorneys already use software to generate wills and other estate documents. She was initially impressed.
“It was amazing what it can do,” Kanaga says. “Put in a simple request (or) question, and it will generate what purports to be a legal document.”
But the closer she looked, the more problems she identified.
She asked for multiple versions of the will, created under several states’ laws, but the drafts were largely the same. The New York version didn’t sufficiently reflect the state’s rules for the executor’s bond. And the signature clauses weren’t noticeably different when every state has its own requirements for the will-signing process. If that clause isn’t correct, a court might not accept a will for probate, she explained.
After reviewing the documents, Kanaga concluded that, in the future, AI might be a reliable way to prepare a will. But for now, she can’t even recommend using it for a first draft you’d give to an attorney.
If you did bring an AI draft to a lawyer, they’d likely ignore it and start over.
“Most attorneys have their own forms, or they use systems like ours, that they know are compliant with state law,” she says.
In other words, if an attorney relied on your untested AI draft rather than prepare a new document they knew would be legally sound, they’d arguably be committing malpractice.
[READ: Do-It-Yourself Estate Planning Mistakes.]
Reasons Why a Human Attorney Should Draft Your Will
While an AI-created will is a one-sided exchange, solid estate planning begins with a meaningful dialogue between the client and attorney.
Clients come in asking for a will, but an attorney may realize they’d be better served with another estate tool, such as a trust, Kanaga says. With that one suggestion, the lawyer can help the heirs avoid extensive probate court proceedings and save thousands of dollars in legal bills.
Similarly, when clients first meet Moughal, they often say they have few assets and need a simple will. Then she begins a “fact-finding mission” and discovers they have a child with special needs who needs assistance. Or they own a business or have digital assets, such as credit card points, a random video game account and a stash of bitcoins. The child can be taken care of and the assets protected in a comprehensive estate plan — but only because she asked.
AI won’t know to ask any of that, but an attorney does.
An AI-Generated Will Is Riskier Than Other DIY Forms
For those asking if there’s a difference between AI-generated documents and the many do-it-yourself form wills available, there is. The DIY forms are typically reviewed by attorneys. AI-generated documents may never get a legal review until a decedent’s will is submitted for probate, and then it’s too late to fix any mistakes.
When DIY wills are enforceable, these documents can still be so unclear or inaccurate that heirs challenge them in court. When Moughal reflects on all the times she’s seen heirs fighting in court, she estimates that half of those disputes involved online DIY wills. And she expects AI-generated documents to be more vulnerable to a challenge than those forms.
A Cheap Insta-Will May Defeat the Point of Having a Will
Execution of an estate is complicated, emotional and time-consuming. Ultimately, the point of having a will is to protect your heirs’ assets and reduce their stress.
The idea that your loved ones would have to deal with an unenforceable will is “not a risk that you want to take,” Kanaga says.
Relying on a shortcut like AI to create a will might make things easier and cheaper for you, but if you make a mistake, it’s your heirs who pay the price.
More from U.S. News
The Best Online Will Making Programs
Do-It-Yourself Estate Planning Mistakes
5 Estate Planning Mistakes Advisors Make
Can You Use AI to Write Your Will? originally appeared on usnews.com
