By Lisa Hostetler Brown, CELA
You can have crappy estate planning documents you got off the internet and think you’re all set. It’s after you’re dead that the problems start. Litigation is the only solution.
Right now, I'm tens of thousands of dollars into an estate litigation case that is a classic story of what can go wrong when you get documents online.
A woman (let’s call her Aunt Betty) thought she needed a Will, so she asked a friend (I’ll call him Jim) to create one for her. Based on what we can tell, Jim went online and found a Will, printed it out, and then filled it out for Aunt Betty, who signed it.
After Aunt Betty died, everyone in the family started scrutinizing this Will. When a person has a Will and somebody doesn't like it, the first thing they're going to ask is, "Which lawyer witnessed this Will?” which will make it much easier to attack the person’s competency. Nobody thinks about this when they’re getting documents from the internet. Aunt Betty certainly wasn’t thinking about it.
If a lawyer isn't the witness on a document prepared by a lawyer, everyone's going to say, "This is suspicious." Now, all the things that people can possibly fight about in a Will contest situation are in play, including duress, undue influence, and lack of capacity, not to mention the unauthorized practice of law by Jim, who has now died.
Choosing the right witness is a big deal. If I have a client whose Will gets challenged, I'm their witness. When it comes to choosing a witness for a Will, there is no better choice than someone who practices elder law, somebody who evaluates people every day about their capacity and their competency to sign legal documents. If you want your Will to stand up under scrutiny, an elder law attorney as your witness is your best choice--better than a general practice lawyer, and a thousand times better than Aunt Betty’s friend, Jim.
In addition to the question about whether Aunt Betty was competent to sign her Will, there is also a problem with the Will’s residuary clause, which covers anything that isn't specifically listed in the Will. If a Will is missing a residuary clause, any assets not specifically mentioned in the Will have to pass through intestacy. The residuary clause is often missing in Wills you get online. Some general practice attorneys even forget to put it in.
In this case, the family members that would inherit by intestacy are the ones challenging the validity of Aunt Betty’s Will. It’s a complicated situation that could have been avoided had they met with an elder law attorney who understood exactly how to help Aunt Betty meet her goals.
Working with the right attorney makes a big difference. A man with several life insurance policies totaling around $1 million brought me his Will, which had been prepared by a general practice attorney. The Will left the $1 million life insurance payouts to ten people, each of whom would get $100,000. I dug a little deeper and discovered that each life insurance policy had a beneficiary—and the beneficiaries named on the life insurance policies were not the people named in the Will. This man’s bequests were doomed to fail. This rookie mistake made by an untrained, unspecialized document drafter would have caused no end of trouble for those left behind.
My advice? Don’t get your Will on the internet. Get it from an elder law attorney. Your family will thank you after you’re gone.
Lisa Hostetler Brown is a Certified Elder Law Attorney and founder of LawyerLisa, a Life Care Planning Law Firm serving the state of South Carolina.