In the old days, handwritten wills rose like zombies from the dead to wreak havoc upon loved ones left behind. They still do, but today many “do-it-yourselfers” use someone else’s will or a form that they download online. They do this in an effort to save money or avoid what they see as the hassle of finding a lawyer, setting up a conference and formally executing a will. This often results in leaving out of a will something that needs to be in it, including in the will something that is not necessary but rather problematic, or using confusing or contradictory language.
Engaging a professional to draft your estate planning documents is a wise course of action. During an initial conference, an experienced lawyer will review a client’s overall financial situation and explain how a will interacts with such things as beneficiary designations and joint accounts. The lawyer will explain the difference between a “probate estate” and a “gross estate”, and the probate process (including the costs of probate, which are different in every state and are greatly misunderstood and exaggerated). The lawyer also will discuss powers of attorney and advance medical directives, which are as important as wills for most clients.
Many times, a will that is not written by a competent lawyer does not express the wishes of the testator, and therefore results in protracted and expensive litigation. The consequences of a poorly written will can be significant. Consider the following scenarios.
Do-it-yourselfers usually leave everything in equal shares to children; they cannot fathom the possibility that doing so can result in an older child ending up with substantially more than a younger child. This may seem counterintuitive, but it is often true. For example, consider a family having two children when the parents meet their untimely demise in an auto accident. John, age 22, who has just graduated from college, will get his inheritance free of any obligations. However Jane, age 18, who has just graduated from high school, will have to use significant sums to pay for her college tuition, books, and room and board. The result: when Jane finishes spending her inheritance on college expenses, she will have far less than John.
Sometimes the owner of a homemade will makes a statement having a legal meaning contrary to what is intended. For example, if the author makes well-defined specific gifts of property to various people, but wants to leave everything else, including his home, to Jane Doe, he may say, “I leave all the rest of my personal property to Jane Doe.” Does Jane Doe inherit the home? Doubtful, but expensive litigation is likely. The term “personal property” has a legal meaning that does not include real estate. Our firm is litigating a similar issue for a slighted Jane Doe.
Even if a will is perfectly written and signed, failure to consider what are known as “non-probate assets” can lead to unintended consequences. Life insurance is one example of a non-probate asset. If the will says, “I leave the proceeds of my Northwestern life insurance policy worth $500,000 to Jane Doe,” does Jane Doe get the life insurance proceeds? Maybe, but not because of what the will says. The proceeds go to the person designated as the beneficiary under the terms of the insurance policy. If Joe Minor is the named beneficiary, Jane Doe gets nothing. And if Joe Minor is under age 18, a court appointed guardian will control his $500,000 until he reaches age 18, when he will then have free reign over the insurance proceeds. This is true even if the will designates a guardian for Joe Minor and creates a trust prohibiting him from free access until some later age. The will terms are ineffective under those facts. Do we really want an 18-year-old to be able to spend $500,000 any way he wants to?
A strict protocol exists for signing and witnessing wills. Sometimes do-it-yourselfers breach that protocol. When that happens, the so-called “will” essentially becomes wastepaper, as it is completely unenforceable.
Something as important as a will should not be a do-it-yourself job. The cost of a will, power of attorney and advance medical directive is insignificant considering a will’s importance and the potential problems a poorly written will can cause. Do not take unnecessary chances with something so important. For peace of mind and to rest in peace, contact one of MG Law’s estate planning lawyers—Pete Goergen, Chris Habenicht, or Patty Wood.