Do It Yourself Wills, Not Such a Good Idea
By Bernard A. Krooks,
Certified Elder Law Attorney
It has been reported that Abraham Lincoln once said, “If you are your own lawyer, you have a fool for a client.” Today it is not uncommon for someone to try to prepare their own estate planning documents without the help of an estate planning lawyer. After all, it’s pretty easy to find some forms on the internet, fill them out and perhaps save a few bucks by not working with an estate planning lawyer, right? Be careful. There is a lot more to estate planning than filling out some forms and it is fairly easy to make mistakes. While lawyers also make mistakes, of course, they are trained and paid to anticipate most of the kinds of issues that might arise. Untrained individuals may not have the skill or luck to foresee problems.
Consider Judy, who decided to write her own will. She went on the internet and printed out an online form for a will. In the middle of the form was a big open space with the language:
“I direct that after payment of all my just debts, my property be bequeathed in the manner following:”
Below that awkward introductory sentence, on the lines in the form, Judy wrote in:
“To my sister Sarah, my Bank Checking and Savings Account, my house at 246 Broad Street and its contents, my 2018 Ford Truck and my Friendly Investments IRA. If Sarah dies before me, I leave all listed to my brother Mark.”
Judy completed the form, signed it, had it witnessed by two people and had the entire document notarized. She felt pleased that she had accomplished this task efficiently and inexpensively.
Do you already see what was wrong with Judy’s will? If you are a lawyer, you probably do — but you might not if you are not a lawyer.
Three years later, Sarah died — before her sister, and before Judy’s will could leave anything to her. In fact, Sarah left her own home and bank account to Judy. Judy took the $130,000 she inherited from her sister and opened a new brokerage account at Friendly Investments (the same brokerage firm where her IRA was located). Then, two years after Sarah’s death, Judy died.
Judy’s brother Mark did survive her. So did the two daughters of her other, deceased brother John. So, who inherits what?
The family could not agree, and the case went to court. The probate judge decided that Judy intended to leave everything to her brother Mark and ordered that her nieces would receive nothing. The nieces were upset and appealed to a higher court. The higher court ruled that Judy had died without a complete will, and that her nieces would receive a share of the undesignated part of her estate — the home and account she had inherited from her sister Sarah. Mark was not happy, so he appealed to the highest court in the state, which ultimately decided that the nieces were entitled to something. Her nieces received a share — a small share, to be sure — of her estate. Who knows if this is even what Judy would have wanted? Only Judy could have answered that question; unfortunately, she is dead.
Now you can easily see what was wrong with Judy’s will. She did not include a “residuary clause” providing for assets not listed in her will. If she had added a few short words to the end of the dispositive language she could have provided for distribution of “all the remaining assets I might own” or something similar.
Even if you think your estate is small, and you want a “simple” will, you should see a lawyer. Ultimately, Judy’s estate would have saved a lot of legal fees for the very modest cost of a lawyer at the outset — and what she wanted could actually have happened.
Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP. He was named 2021 “Lawyer of the Year” by Best Lawyers in America® for excellence in Elder Law and has been honored as one of the “Best Lawyers” in America since 2008. He was elected to the Estate Planning Hall of Fame by the National Association of Estate Planners & Councils (NAEPC). Krooks is past Chair of the Elder Law Committee of the American College of Trust and Estate Counsel (ACTEC). (914-684-2100 www.elderlawnewyork.com)