Do-It-Yourself Wills: Cheap Now, Expensive Later?

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Published May 05, 2014

| FOXBusiness

It began with the best intentions. 

Ann Aldrich, a resident of Keystone Heights, Fla., wanted to protect her assets in the event of her death so she went online and created her will using the “E-Z Legal Form”. 

As she filled in the blanks on the form, in the section labeled “Bequests,” she wrote that her sister, Mary, was to inherit all of the “possessions listed.” This included Aldrich’s home and all of its contents, a rollover IRA, a life insurance policy, her Chevy Tracker and all of the accounts she held at a particular bank.

In addition, in her own handwriting she specified that if her sister Mary died before she did, “I leave all [items] listed to James Michael Aldrich,” her brother.

As fate would have it, Mary died first, and she left Aldrich a piece of land and $122,000 in cash.

Aldrich then duly added a page entitled “Just a Note” to her E-Z Form will where she reiterated that “all my worldly possessions pass to my brother James.” She signed this handwritten addendum. Acting as a witness, James’ daughter, Sheila, also signed it. Five and a half years later- in October 2009- Aldrich died.

That’s when things got expensive.

Two other nieces- daughters of a different (deceased) brother- claimed the addendum to Aldrich’s will was invalid and that her will did not cover the property she inherited from Mary. They wanted a piece of it. Naturally, James disagreed.

The case started out in the local Circuit Court, got appealed to the District Court and went all the way to the state Supreme Court.

In the end, the nieces won on a technicality. The assets Aldrich inherited from Mary had to be distributed according to Florida law covering “intestate” property, or property not covered by a will.

In essence, at every level the justices hearing the case agreed that Aldrich fully intended for her brother to inherit everything she owned at the time of her death, but their hands were tied for the following reasons:

  • When she wrote her will, Aldrich listed in great detail the real estate and accounts that she wanted her sister to inherit. She specifically said that if Mary pre-deceased her these items would pass to James.
  • The E-Z Form will said nothing about any other property she might have acquired after the will was written. This is known as the “residuary estate.”
  • Aldrich undoubtedly intended that the distribution of her residuary estate- primarily the property she inherited from Mary- was covered by the “note” she attached to her will. However, Florida law requires two witnesses; hers had only one.

“A codicil is an amendment to a will,” explains estate planning attorney Jenna Rubin with law firm Gutter Chaves located in  Boca Raton. “It’s usually done when you have some change to make and don’t want to re-write the whole thing.”

However, even if the changes are written in your own handwriting, you still need to comply with what are called the “will formalities.” These are the conditions each state requires for a will--or changes to one--to be considered valid. The standard in Florida is two witnesses.

“Every state has its own quirky rules,” cautions Rubin.

The problem is, you don’t know what you don’t know. If you’ve got a form titled “Last Will and Testament” you assume that if you fill in all the blanks, you’re covered. “It gives you a false sense of security,” says Rubin.

In fact, using any kind of one-size-fits-all legal document is risky. And yet, these forms are advertised on television and all over the internet. While some providers purport to “customize” your will based upon your state's laws and perhaps even have the document reviewed by a “real” lawyer, it probably isn’t advisable unless you’ve only got a few simple possessions and a relatively small estate (e.g. you just graduated from college, are living in an apartment and maybe own a car). 

Let’s face it, there are just some issues in life that are best handled in a face-to-face conversation with a qualified professional. 

“A lot of times clients come in saying they want something very simple,” says Rubin. “But then you find out their daughter had a baby by artificial reproductive technology. If the definition of ‘child’ in your will isn’t up-to-date, you could disinherit your grandchild.” 

In the words of Florida Supreme Court Justice Pariente, the outcome of Aldrich’s will illustrates “the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. [This] decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees- the precise results the testator sought to avoid in the first place.”

Or, in Rubin’s words, “You’re dead, so you don’t realize the mess you left behind.”

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http://www.foxbusiness.com/personal-finance/2014/05/05/do-it-yourself-wills-cheap-now-expensive-later/