Don’t let other people’s mistakes put you off preparing your own Will.

Every once in a while there is an unfortunate case of somebody making a mistake when attempting to prepare their own Will. A recent case in Florida has been reported, quite literally, thousands of times through different law blogs as a “cautionary tale” of how things can go badly wrong when you try to prepare your own Will. You can look up the case of “Aldrich v. Basile” and you will see about 100,000 results with headings like

“Case Illustrates Dangers of Executing a Will Without Legal Assistance”
“Do-It-Yourself Wills: Cheap Now, Expensive Later?”
“Why Preprinted or Online Legal Forms Are Not Advisable”

I’ll explain my position on this very sad situation by firstly summarizing exactly where Ms Aldrich went wrong. In an E-Z Will kit form she listed some specific assets to go to her sister and if the sister were to predecease her, the list of assets would go to her brother. Then a few years later her sister died, so she updated that Will with a handwritten note that stated;

This is an addendum to my will dated April 5, 2004. Since my sister Mary jean Eaton has passed away, I reiterate that all my worldly possessions pass to my brother James Michael Aldrich, 2250 S. Palmetto, S. Daytona FL 32119.

There were two issues; firstly her original Will only covered the list of assets, not everything else. However, even though the handwritten update covered “all my worldly possessions” it was only signed in the presence of one witness not two and so was not accepted by the courts.blank paper

With respect to the first error, this is unfortunately a limitation of blank form kits, and this is why we steer people away from them – It is easy to forget things. It is important to not confuse a blank form kit with a fully interactive service that guides you through the process and checks for errors. When a person makes a mistake with an E-Z Will kit form it is a warning bell for using this type of form, not for trying to prepare one’s own Will using interactive software. If you use a service like ours this mistake is absolutely impossible to make.

But I personally feel that the second error reflects badly on the Florida Supreme Court. In their ruling the judge stated that

Unfortunately, I surmise that, although this is the correct result under Florida’s probate law, this result does not effectuate Ms. Aldrich’s true intent. While we are unable to legally consider Ms. Aldrich’s unenforceable handwritten note that was found attached to her previously drafted will, this note clearly demonstrates that Ms. Aldrich’s true intent was to pass all of her “worldly possessions” to her brother, James Michael Aldrich

Thankfully an increasing number of jurisdictions have introduced laws that try to respect the intent of the testator and they will not allow true intent to be over-ruled by a technicality. In this case, everybody knows what Ms Aldrich meant, everybody knows what she wanted, but the lawyers and the courts successfully managed to throw this out. The court declared that Ms Aldrich had died without a Will and gave a share of the estate to her nieces according to intestate law.

The judge actually stated that she was deciding the case contrary to the testator’s “true intent”, Ms Aldrich did not want any of her estate to pass to her nieces, they were never mentioned in any of her documents. One legal blogger was very critical of the decision claiming that;

Apparently, the court wished to inflict post-mortem punishment on the testator for engaging in DIY estate planning….The court blamed the “unfortunate result” on the fact that Ann did not seek legal assistance in creating her estate plan. 

So now to the reaction and estate planning lawyers are collectively rubbing their hands with glee and providing all kinds of examples of why trying to prepare your own Will is a mistake. Like this one

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.

The claim is nonsense. This clearly does not happen “a lot of times” and perhaps the conclusion should be that if this situation does not apply to you, you can safely go the “do-it-yourself” route.

They then go on to say

These are the conditions each state requires for a will to be considered valid. The standard in Florida is two witnesses.“Every state has its own quirky rules,” cautions Rubin

Actually…it’s not that quirky, every single state requires two witnesses. Across the internet, the scaremongering goes on with countless obscure examples of how attempting to prepare one’s own Will is going to lead to trouble. As an aside, the vast majority of challenges are to Wills prepared by estate planning lawyers but we rarely see “a cautionary tale for what can happen if you use a lawyer to prepare your Will”.

The fallout of this unfortunate case leads me to the following recommendations;

Do not be scared off from preparing your own Will. It isn’t as complicated as some people want you to believe. If you have a complicated family situation then you need legal advice, but most people do not. From time-to-time there will be an article in the media about somebody who made a mistake with a Will kit. This does not mean that preparing your own Will is a bad idea. Over 65% of people do not have an up-to-date Will in place, and many of these are under the mistaken impression that you must use a lawyer to prepare a Will. You should take things into your own hands and make sure that your Will is in place.

Do not use a blank do-it-yourself Will kit, there is a very significant likelihood that you will make a mistake or not cover all situations that need to be covered. Blank forms have way too many spaces that have to be completely correctly. When you see a Will completed through our service you can appreciate how complicated the document can be, with various trust clauses and powers to the Executor. If you do not have a legal education you would not be able to create a well drafted Will using these kits.

Do not use a handwritten note to express your wishes; it opens your estate up to challenges and it may not fulfil the requirements of a Last Will and Testament or Codicil.

Do not use a Codicil to make an update to a Will. Just create a new Will. If you use an online service like ours, you can just login, make the change and print off a new Will. It’s easy.

I just wish that common sense would have prevailed and that the courts would have respected the final wishes of Ann Aldrich. It’s a real shame that they wouldn’t.

Tim Hewson is the President and Founder of the LegalWills group of companies. Offering online interactive estate planning services through LegalWills.ca, USLegalWills.com and LegalWills.co.uk. Founded in 2001, these services have become market leaders helping hundreds of thousands of people prepare their important legal documents.

Why common-law marriage is a myth

Often times we end up writing articles that try and explain the kind of mess you can get into if you don’t have a Will. So often, the complexities of the law can be avoided completely if you write a Last Will and Testament. Common-law marriage is a case in point.

According to some statistics, about one in six people co-habit without getting married; clearly there are many reasons for this which we won’t get into, but if ever there was a case for preparing a Will, a common-law marriage is it. I will now attempt to distill the vagaries of the law across different jurisdictions.

In the UK, the law is simple and unequivocal;  ‘common law marriage’ has no recognition in law and unless you have both made Wills neither of you will have any automatic rights to inherit from the other. The intestacy rules dictate what happens if you die without a valid Will and they make no provision whatsoever for a ‘partner’; it is only a ‘spouse’ who will automatically inherit. You may have co-habitated for 50 years, but in the eyes of the law, you are complete strangers if one of you dies without a Will (you may be able to make some claim based on a “dependency”, but this would require a challenge to the default distribution of the estate). Incidentally, if you do inherit money or property from an unmarried partner, you are not exempt from paying inheritance tax, as married couples are.

In Canada, it is slightly more complicated. British Columbia, Saskatchewan, Manitoba, and the Territories do recognize common-law relationships, however, Ontario, Alberta, New Brunswick, Nova Scotia, Newfoundland and Labrador, and PEI do not recognize common-law partnerships and surviving partners will face the same challenges as those described for the UK (above).

The US also has very complicated State specific laws which I can’t go into here. I have spent literally hours looking through State laws to find a good explanation that would fit into this blog, but it cannot be done. In summary there is a common misperception that if you live together for a certain length of time (seven years is what many people believe), you are common-law married. This is not true anywhere in the United States. There are 11 states that recognize the existence of a common-law marriage, and this allows the surviving partner to inherit if there is no Will. For the other States there is no protection for surviving common-law partners.

In short, if you are cohabiting, in a “domestic partnership”, living in a putative Marriage (one that is simply implied) or a common-law situation, you absolutely must write your Will to protect the rights of your surviving partner. You should also prepare a Power of Attorney and Living Will because depending on your jurisdiction, your common-law spouse may have no rights if you were ever to be incapacitated.

Fortunately, a Last Will and Testament, Financial Power of Attorney, Healthcare Power of Attorney, Living Will and Advance Directives can all be created through the online tools at www.legalwills.ca , www.uslegalwills.com and www.legalwills.co.uk. The whole process takes no more than a few minutes and can protect the rights of your partner. It is a serious issue that should not be put-off.

Writing your Will isn’t about you…

We occasionally hear people explain that they haven’t prepared a Will because they don’t really care what happens after they have died – they’ll be dead. This attitude always dismays me a little because writing a Will isn’t about you – your Will is for your loved ones. The excuse is often followed up with “I don’t need a Will, it’s obvious what will happen to my things”. A recent news article highlighted why these approaches are so disrespectful to one’s family.

In Canada, you can claim a tax free spousal rollover from retirement savings, as long as it is all completed within a year. A 54 year old widower lost his wife to cancer, and was the Executor of the estate. According to the rules, he has to submit the paperwork with the bank; including the death certificate, Will and probably probate documents. In this case, the bank lost everything and he was supposed to follow up. But guess what; he has 3 children from 5 years old to 16 and he had just lost his wife. In his words “I was overwhelmed with worry, and the priorities were always the kids. I was reading up on what happens with kids after they lose their mom….Oh, God. There were too many emotions and too many other things happening with the kids.” In this unfortunate case, he simply lost track and was expected to pay tax on the $80,000 savings (the bank has since stepped in and offered to pay).

This expression of being overwhelmed is very common for loved ones when a family member passes away. Throughout these emotionally desperate times there is a funeral to arrange, banking, taxation, care for the family, the list is endless. Many people have a hard time filing their taxes at the best of times, so imagine trying to do it shortly after your partner has passed away.

There are two key points to understand. Firstly, taking care of the bureaucracy is usually much easier with a Will in place. Furthermore, the Will  allows you to choose an Executor for your estate, and given the emotional toll on your spouse, it may make sense to appoint another family member or trusted friend to take care of the paperwork.

I find it odd that people care so much for their loved ones while they are alive, but leave them with a legacy of problems by dying without a Will. It only takes about 20 minutes to write a Will at legalwills.ca, legalwills.co.uk and uslegalwills.com and costs less than dinner and a movie.

Writing a Will isn’t for your benefit, it is for your loved ones.

I’m trying to think of a good reason to not have a Will….

The story of Roman Blum has puzzled me all day. He was very wealthy – to the tune of $40M. He had many friends and was a fixture of the New York social scene. He was an incredibly smart business man, and employed a group of professional advisors including accountants and lawyers. He was obviously touched by many social causes having been a holocaust survivor himself. So how could a man in this position, reach the age of 97 and still be procrastinating over the act of writing his Will? How could a man with such a sizeable estate miss the boat entirely, and allow the whole lot to pass to the State treasury?

The New York Times article has some illuminating quotes from his friends and professional advisors, which has relevance to the 60 percent of adults who don’t currently have a Will;

He was a very smart man but he died like an idiot”
Paul Skurka, a fellow Holocaust survivor who befriended Mr. Blum in the 1970s

This comment demonstrates that writing a Will is often not about YOU, it’s about everybody that is left behind to pick up the pieces. It really is idiotic.

I spoke to Roman many times before he passed away, and he knew what to do, how to name beneficiaries,Two weeks before he died, I had finally gotten him to sit down. He saw the end was coming. He was becoming mentally feeble. We agreed. I had to go away, and so he told me, ‘O.K., when you come back I will do it.’ But by then it was too late. We came this close…”
Mason D. Corn, his accountant and friend for 30 years.

The man was 97 years old. He should have written a Will in his twenties and updated it throughout his life. Planning to prepare a Will just before you die is a desperately bad idea.

None of Mr. Blum’s friends know why he never wrote a will. Those close to him say it may have been superstition or, after coming so close to dying during the war, a refusal to contemplate his own mortality.”

At LegalWills, we can guarantee that you are no more likely to die if you have written your Will. We can also guarantee that you will die one day.

He may also have been unwilling to share the full details of his estate with a lawyer, the desire for secrecy a holdover from his experiences during the war.”

We have heard this before and explains why services like those offered by us at LegalWills.ca, LegalWills.co.uk and USLegalWills.com are increasingly popular. They are private and convenient, and your personal affairs need not be shared with anybody.

There is a lot of conjecture as to why Mr Bloom never created a Will, but there is real tragedy here. I am quite certain that if he had taken the few minutes to write a Will, he would almost certainly not left his entire fortune to the State of New York. That is not what he wanted.

Things can go wrong

Many people have a strange notion that the best time to write their Last Will and Testament is just before they die, and that preparing the document today is unnecessary. We’ve even had people on our Facebook page say that “fortunately, I don’t need a Will yet”. We made reference to this in an earlier blog article and explained that there are at least three important issues with taking this approach;

  1. You really don’t know when you are going to die
  2. When we are about to die, we may not have the facilities in place to write a Will, and it may not be the first thing on our minds
  3. We may actually lack the mental capacity to prepare a Will at this time and the document is more likely to be challenged.

It has also been suggested to us that some people feel that preparing their Will is actually tempting fate; in other words, if they write their Will, they are actually more likely to die!

We try to explain to people that a Will is not a final document; it can be updated throughout one’s life. In fact, it should be reviewed on a regular basis and updated whenever there is a change in financial or personal circumstance, and not just for the Will writer, but also a change in circumstance for anybody mentioned in the Will. It is always a good idea to have a Will, even if you are young and healthy.

This was made even clearer to me in the last week by two separate incidents that happened to my close friends and neighbours. Fortunately, nobody was hurt, but it demonstrates how quickly things can go wrong.

The first incident happened a few doors down the street. We’ve had a very long hot summer here and one afternoon for whatever reason, some dry grass ignited in the back yard of a house. It quickly caught onto some bushes, a tree, then some power lines which ignited the roof of the house. Within a few hours a beautiful residential house was completely destroyed. Nobody’s fault and there was nothing that anybody could have done.

The next incident happened just a few days later at a friend’s cottage. The days of humidity finally broke and a thunderstorm came through. A few miles from here, the thunderstorms came out of nowhere and were violent. My friend was stranded in their cottage while trees were being uprooted all around them. After an hour or so, they emerged from the cottage to see complete devastation.

Natural disasters do not need to be on the scale of a Tsunami or a Katrina. They can happen very close to home and barely warrant a mention in the news. But the impact can be profound.

None of us are immortal and it doesn’t matter how healthy we are, or how careful we are; things like this can happen.

Fortunately at sites like LegalWills.ca, USLegalWills.com and LegalWills.co.uk you can create your Will in a matter of minutes, from the comfort of your home at a fraction of the cost of paying for legal advice. It doesn’t make sense to procrastinate when you can have peace of mind by the end of the day today.

Do your parents have a Will?

A straightforward blog article today with a simple question; “do your parents have their Last Will and Testaments in place, and updated to reflect their current wishes and circumstances?”. We know that about 60-70% of people don’t have a Will in place, and most of these are not kept up-to-date, but I am guessing that a very few number of people have had the discussion with their parents regarding their estate plans. There are obvious reasons for this; first is the misconception that a talking about estate planning is tantamount to telling them that they’re about to die. This is of course a strange notion because few people plan their death, but everybody should have their estate plan in place.

The other misplaced notion is that you would be prying into the financial affairs of your parents. Of course, asking if your parents have a Will does not require that you are privy to the contents of that Will. Parents can just let you know that yes, they have a Will, you may be the Executor of that Will, the rest can wait until after they have passed away.

Why do you even need to know if a Will is in place? Because a parent dying with a Will, and a parent dying without a Will are two very different experiences.

When a single remaining parent passes away and their Will is in place, the Executor takes that Will to the probate courts, is granted permission to administer the estate and take care of the funeral plans. With this court document they are able to go to the banks and financial institutions and gather the assets of the estate to be distributed according to the wishes outline in the Will. Everything can be resolved in a matter of weeks.

Without a Will different people may apply to the courts to administer the estate. No asset can be touched until the court appointed administrator has been assigned. The estate will then be distributed according to the laws of that jurisdiction which may require certain assets for example, real estate, to be liquidated. The whole process is likely to take months rather than weeks, no asset can be touched in the meantime and the distribution of the assets will not likely match the wishes of the person who died. Arguments and family divisions are far more likely with children squabbling over everything from the funeral plans to the ownership of individual items. And there is actually quite a high probability that some assets are never even discovered.

Parents who die without a Will end up creating problems for their children, so have the discussion. Just ask if a Will is in place and ask if it has been updated in recent memory. You need not pry and you are not hastening the demise of your parents by asking the question. If the answer is no, you should let them know that it need not be expensive, and can be done in 30 minutes or less at sites like LegalWills.ca, LegalWills.co.uk and USLegalWills.com.

I’ll just let everybody know what I want to happen….

One of the most common reasons cited for not preparing a Last Will and Testament is that “everybody knows what I want to happen” or “it’s obvious who will get my things.” Many people have a natural inclination to avoid all things bureaucratic and take an easier option if an alternative is available. There may also be an inherent distrust of the court system, tax collectors and the like, which prompts many people to avoid these institutions if at all possible.

In some people’s eyes the alternative approach to estate planning is to just jot down on a piece of paper that “my cousin Bill can have my home theatre system, my niece Sue can have my car and the rest can be divided up between my sisters”. Now, let’s explore why this is going to be a complete disaster.

Firstly, there’s nobody named to administer the estate. One of the most important appointments in a Will is the Executor and this person will control and moderate all distribution of the estate. In many cases, they are required to immediately change the locks on any property because sadly, it is only too common for people to rush into a home and pick through the belongings of a very recently departed person. The Executor controls this, and without an Executor there will be a very ugly free-for-all with accusations and suspicions poisoning the family spirit. If an object cannot be found, it will naturally be assumed that somebody has taken it. There’s also the danger of the same item being promised to different people at different times which often leads to previously amicable family members suddenly being unable to work together in harmony. One of the most important impacts of a Will is a formalization of this distribution of personal effects.

The other key responsibility of the Executor is to aggregate all of the items in order to put a value on the estate. You may want to avoid bureaucracy but unfortunately the taxman may still want their share. There may also be funeral expenses to be paid and perhaps even debts owed. If credit card companies are owed something, they will want their money, and this will be paid out of the estate before it is distributed to beneficiaries. Family members cannot start helping themselves to the estate until these obligations have been met and a Will helps to formalize that process.

Then there’s the matter of actually collecting the assets. Try walking into a bank and telling them that an account holder has died, and they wanted you to have everything they owned. You will not get very far at all. A bank will want formal documentation that you are the person that they should be releasing the assets to, and without a Will, the courts will take control of gathering the assets and then distributing them.

Unfortunately, it is very difficult to plan your estate distribution informally using any other document that is not a Will. The good news is that it is possible to create your Will quickly and affordably at a service like those offered at LegalWills.ca, USLegalWills.com and LegalWills.co.uk.