Most estate planning attorneys would disagree with me, but I really want to thank the self-help legal websites, such as Legal Zoom and Legal Rocket, when it comes to estate planning. Why would we want to thank our supposed competitor? Because more often than not, problems come into our office regarding estate planning are due to documents that are created through self-help websites.
We recently had a client come to our office to discuss the handling of her sister’s probate. The sister was a very well educated, college professor who created her own estate planning documents (will, health care power of attorney, durable power of attorney (with a living will), and separate list). Her sister even drafted a codicil to her will, which removed some of the beneficiaries.
Once we dug into the documents, we realized that the Will included many assets that were not assets that could be distributed through probate, because the assets were all financial assets that were controlled by a beneficiary designation. Even more amazing was that our client had not updated all of her beneficiary designation, so some people received some of her financial accounts that were against her wishes as disclosed in her will.
The next issue was that the codicil was not properly signed and authenticated by a notary or two witnesses. When submitted to the court, the court rejected the codicil as not being legally sufficient due to not having either the notary or dual witnesses. The end result is that the decedent’s wishes could not be satisfied due to her failing to meet the state law requirements for a valid codicil.
Another major issue that we noticed was missed by the decedent handling the drafting of her own estate planning through the self-help website, was that a probate had to be opened at all. Many states have some simple probate avoidance laws, that if fully utilized, will allow for the vast majority of estates to avoid having to open a probate. For example, most families have the following assets: home, financial accounts, and life insurance. Financial accounts and life insurance pass to the beneficiary by right of survivorship or what is often called a beneficiary designation. The key to these financial accounts is that you have to fill out the beneficiary designation form, and amend or change the beneficiary designations when your life changes due to death, divorce or someone that no longer deserves your kind gift.
What many people do not realize is that real property in many states can now be transferred at your death by a beneficiary designation by a “beneficiary deed” or a “transfer on death deed.” In our recent client situation, had the decedent come to our office to put together her estate planning, we would have drafted up a will, health care power of attorney (with a living will), durable power of attorney, and separate list. We would also have ensured that her financial accounts had the proper beneficiary designations and we would have prepared a beneficiary deed to transfer her real property in the manner that she desired. Our simple plan would have saved her estate from filing a probate and also would have ensured that her codicil would have meet the desires of her final disposition of her assets.
The moral of the story is that we can’t all be experts in everything. If you want assurances that your estate planning is done right, then seek out the assistance of an attorney that focuses on estate planning. If you want to go at it alone, then we want to thank you ahead of time for increasing the odds and costs of using our services in the future.
Thanks to our friends from Silverman Law Office for their insight into estate planning.