A colleague recently had a new client come to see them. The man's father had passed away, and the son had found the Will…the Will that his father had purchased online and signed, thinking his wishes would then be honored. Sadly, they won't be.
The form Will that the father had filled out had spaces for specific bequests – specific items that he wanted to go to certain people. So the father had filled those out. Then he signed the Will in front of two witness and had it notarized.
As the years passed, some of the things the father had left to people went out of his estate – cars were sold, bank accounts were closed and new ones opened – and some of the people he was leaving things to had died. And no where in his Will were these things taken into account. There were no contingent beneficiaries, people who would inherit if the first beneficiary died before the father. The residuary clause – the catch-all clause that says "anything else I may own at the time of my death goes to the following people:" – wasn't even on the form.
When a Will is properly drafted with an attorney, the attorney will ask questions of the person making the Will – "You want to leave that account to Sharon, ok, do you want to leave all bank accounts to Sharon? What if you close that account and open another, what would you like to have happen? What if Sharon passes away before you? Do you want her share to go to her children or to her siblings? Are her children minors? Do any of them have special needs? What about the grandson you mentioned who's having problems with drinking? – and so on and so on.
That is the reason to have an attorney assist you with this process. We know the questions to ask, and we know what to do with the answers. We know how to read the hesitation in your voice when you are trying to decide who to choose as guardian or executor, and how to tease out more information so that you can make the best decision for your family. And we are here when your life changes and you or your family need some guidance on what to do next. We are here when the Power of Attorney you signed has to be used by your children and the bank is giving them a hard time. We are here when your sister has to use your Health Care Proxy and she can't find her copy and she doesn't have a key to your apartment because she never thought anything like this would actually happen.
So, what will happen to that father's estate? The things that are still in the estate and are mentioned in the Will will pass through the Will. The things that are left to someone who has predeceased would have passed through the residuary clause to someone else of the father's choosing but will now pass by Massachusetts Law, through the Intestacy Statue, which differs greatly from the father's wishes. Those things which were not mentioned in the Will at all, the new bank accounts the father had opened, those will pass through the Intestacy Statute as well. For some things, the Court's guidance may need to be sought, for others a guardian needs to be appointed for a minor child who is inheriting "unintentionally", all of which involve more time and more money, which the father was trying to save by doing it himself.
There are ways to keep costs under control when preparing your estate plan. Buying documents online just doesn't happen to be one of them. Working with an attorney ensures not only that your wishes will be honored, but also that your estate can be administered in the most timely and cost effective manner after you pass away. I always tell my clients "when your affairs are in order, I become the last person your family calls in the event of a crisis and instead of the first," which is how it should be.
Planning, Probate and Trusts involve complex areas of law. Individual
circumstances must be considered before any advice can be given. The
general information above is not to be construed as legal advice, which
can only be given after consideration of the unique facts of each
matter. Please seek the advice or counsel of your attorney, financial
advisor or CPA as it may be appropriate.