A ‘Do It Yourself Will’ may be an inexpensive route, but…
A potential client called my office to discuss the probate of her mother’s home now that the mother has passed away. She told me how she prepared a Will for her mother to sign (she’s not an attorney or paralegal – she just used a form she found on the Internet) and how the Will states that, at death, the homestead should be sold with the proceeds being distributed among all the children (there are 6 of them). She also mentioned to me that her mother was receiving Medicaid benefits before she died.
…And, therein lays the problem.
In Florida, a person’s homestead is exempt from forced sale by creditors and this exemption passes to your heirs at law (i.e., your blood relatives) so that creditors of your estate cannot force the sale of the home to be paid what they are owed. The home will pass free and clear (unless there is a mortgage) to the family, the family can sell the house if they choose to and then split the proceeds. So, why is there a problem with this potential client’s situation?
The daughter prepared a “do it yourself” Will for her mother, and thought she was doing everyone a favor by drafting language into the Will requiring that the house be sold with the proceeds being split amongst the children. If the mother would not have had a Will at all (i.e., died “intestate”), the house would have gone through probate, been transferred into the kids’ names, and they could have sold it and split the proceeds. Or, mom’s Will could have just stated that “all the rest, remainder and residue” goes to the children and the house would have gone through probate and into the names of the children. However, because the Will requires that the house first be sold, Florida case law is pretty clear that this subjects the proceeds from the sale to creditors’ claims, meaning that, before the money can be divided amongst the kids, the creditors can file claims against the estate and collect on their share. And, that means that Medicaid’s lien must now also be paid back (which would not have happened if the Will had been drafted properly).
So, what have we learned?
There are reasons why you go to an elder law attorney to prepare your Will (and Durable Power of Attorney, and Living Will, and Health Care Surrogate) because they know what should and should not be in the document. They can weigh the pros and cons of things you might want in your Will and can tell you the legal reasons for why you should or should not have a particular provision in your Will. Please, don’t do it yourself.