Estate Planning Do It Yourself Disasters
While on-line “do it yourself” (“DIY”) estate planning services offer convenience, the potential problems due to mistakes can cost your family thousands of dollars. The problems with forms is that they simply are no substitute for advice. “Simple Wills” are rarely simple. For example, Ann Aldrich used a free on-line form to complete a will in 2004. She left specific gifts to her brother which consisted of nearly all her assets at the time she created the document. However, she subsequently acquired over one hundred thousand dollars several years later. When she died shortly thereafter, she had not revised the Will.
The brother argued that it was the Decedent’s intent to leave everything to him based upon the 2004 will. However, the Florida Supreme Court disagreed in the matter of Aldrich v. Basile, — So.3d — (Fla. 2014), 2014 WL 1250073. The Court ruled that if she had intended this result, she could have easily included what is called a “residuary clause” that left everything to him. As a result, he now had to split these funds with the nieces of another sister who died before Ms. Aldrich.
Not limited to the U.S. This is not a problem limited only to the United States. Dennis Sharpe, a barrister in the United Kingdom, noted that the rise in average prices of homes, in combination with “do it yourself” will kits, will be responsible for a huge increase in the amount of contested probate cases. In many instances, the beneficiaries are the persons who helped the Decedent write the will, and this may give rise to a claim of undue influence.
Practical considerations. The insight an estate planning attorney can provide is invaluable. For example, you may nominate someone to serve as the executrix but not consider their age. If the person predeceases you and you haven’t nominated anyone else, this will become a problem as there is no clear designation of who should be in charge of your estate.
One size doesn’t fit all. Most on-line forms don’t take into consideration the issues that arise where one or both of the spouses have children from a prior relationship. There may be specific provisions that should be included to address the disposition of business interests. In addition, if there are special needs beneficiaries, the forms would likely not account for addressing these types of bequests.
Invalid witnessing. Another frequent mistake is that one of the witnesses is someone who is receiving all or part of the estate. In Nevada, all devises in a will to a subscribing witness are void unless there are two other competent subscribing witnesses to the will. NRS 133.060. In other words, the will is still valid, but the witness is now prevented from receiving anything pursuant to the will.
Failure to fund. A trust is a great tool to avoid probate. However, in one instance, we were contacted by the family after their loved one died to review the trust that had been prepared using an on-line service. While the trust was adequate, the deceased hadn’t realized that she needed to complete the transfer of her assets into the trust. As a result, a particular type of probate proceeding was still required.
Capacity planning. There are two sides to estate planning. While most people address issues that will arise upon their death, they may not understand the importance of planning for their incapacity. In order to avoid court intervention, the use of powers of attorney for financial matters and advanced healthcare directives are imperative. However, in many instances, people may not understand the necessity of these documents, and they are not completed.
Poor drafting can result in ambiguities or conflicting language. The costs of hiring an attorney to prepare your estate plan may far outweigh the burden on your loved ones in the event of problems that arise after their passing.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created, and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.
Lee A. Drizin, Esq. is the founder of Drizin Law and has practiced in Las Vegas for over three decades. His work focuses on probate, estate planning, trusts, and guardianship, with particular experience handling contested probate and administration matters. A UNLV graduate with a Master of Laws in Taxation from Boston University, Lee has built his career helping Nevada families navigate some of the most difficult times in their lives.
