Preparing Your Own Will – To Do Or Not To Do

Planning on preparing you own will?  I understand the reasons why some people want to prepare their own estate planning documents themselves – they want to save money or maybe they do not have the funds to go see an attorney, so they try to do it themselves. I get that. However, the problem with doing it yourself is that there are so many things you may not think of that need to be in the Will (and you don’t have the legal understanding to know why something should or should not be in the Will), that if they are not in the Will could end up costing your estate and your heirs money because of your mistakes.

I would have to say that a majority of the “form” Wills that I have seen had something wrong with them. Usually, they are not signed correctly (each state has specific rules for how a Will should be signed). Many times, the Will leaves out language that would have accomplished the intent of the testator (the person signing the Will). For instance, I had one case where the person lists specific assets (bank accounts or real estate) they want a family member to have but they leave out what is supposed to happen to the rest of the estate (known as “the residue”). What happens if you forget to mention what you want to happen to the residue of your estate?

This particular set of facts happens quite a bit, as is illustrated by a recent Florida Supreme Court case known as Aldrich v. Basile, 136 So.3d 530 (Fla. 2014). In this case, the decedent used a store bought Will to leave specific bank accounts and real estate to her sister. She also stated that if her sister died before her, that her brother was to receive the assets. Her sister did end up dying before her, and she inherited her sister’s real estate and a bank account. She never changed her Will (although she left a hand written note stating that she wanted her brother to receive all of her assets at death – she did not sign it in front of witnesses, so this was not a valid codicil). At her death, after much litigation, the Florida Supreme Court confirmed that the assets she acquired after her sister’s death were to be split as if she had died without a Will (or intestate) such that, her nieces (children of another brother who died before her) would receive a share.

Florida Supreme Court Justice Pariente had this to say, “While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer, this case does remind me of the old adage “penny-wise and pound-foolish.” Obviously, the cost of drafting a will through the use of a pre-printed form is likely substantially lower than the cost of hiring a knowledgeable lawyer. However, as illustrated by this case, the ultimate cost of utilizing such a form to draft one’s will has the potential to far surpass the cost of hiring a lawyer at the outset. In a case such as this, which involved a substantial sum of money, the time, effort, and expense of extensive litigation undertaken in order to prove a testator’s true intent after the testator’s death can necessitate the expenditure of much more substantial amounts in attorney’s fees than was avoided during the testator’s life by the use of a pre-printed form.” I couldn’t have said it better myself!

Laurie Ohall is a Florida Board Certified Elder Law Attorney based in Brandon, Florida.  Contact Ms. Ohall today if you need estate planningelder lawprobate or guardianship assistance.