Apr 21, 2014

Your Florida will: Avoid the "do it yourself" approach

Considering creating a do-it-yourself will to save a few bucks? Please reconsider. You may cause your family unnecessary anguish and conflict. And the few dollars you "save" could be gobbled up at the end of the day by lawyer's fees. The case of Aldrich v. Basile, recently decided in the Florida Supreme Court, clearly demonstrates the disadvantages of do-it-yourself estate planning.

In 2004 Florida resident Ann Aldrich wrote her will using an "E-Z Legal Form." In the handwritten parts of the will that she completed, she indicated that at her death, her possessions were to go to her sister, Mary Jane Eaton. If her sister predeceased her, those assets were to go to her brother, James Michael Aldrich. Her will also had a hand-written list of specific assets, which included several bank accounts, her home and its contents, an IRA, a vehicle, and a life insurance policy. The will was properly signed and witnessed. 

However, Aldrich did NOT state what should happen to any assets she might acquire after the execution of her will. In other words, there was no "residuary clause."  The form had neither a pre-printed residuary clause or guidance for including one.

Eaton died in 2007, predeceasing Aldrich and leaving her a Fidelity account and property in Putnam County, Florida. Obviously, these assets were not included in Aldrich's 2004 will. In an attempt to rectify the problem, Aldrich hand-wrote a note in 2008 stating: This is an addendum to my will dated April 5, 2004. Since my sister Mary Jane Eaton has passed away, I reiterate that all my worldly possessions pass to my brother, James Michael Aldrich..."  The note did not conform to the requirements of Florida law. There were no impartial witnesses; the one and only witness who signed the note was Sandra Schuh, daughter of James Aldrich.

The entire matter sparked a family dispute that ended up in court, ultimately making its way to the Florida Supreme Court. Ms. Aldrich's brother James argued that all of his late sister's assets should go to him. Ms. Aldrich's two nieces (the daughters of another of Aldrich's deceased siblings) argued that the assets Aldrich inherited from Eaton should pass according to Florida intestacy law since (1) her will neither mentioned those assets nor contained a residuary clause and (2) Aldrich's "addendum" was legally invalid. Therefore, the nieces argued, as constitutional heirs at law they were entitled to a piece of the assets Aldrich had inherited when Eaton passed away.

Ultimately the court decided in favor of the nieces, concluding that the assets Aldrich inherited from Eaton could not pass under Aldrich's will. The court decision reads:   

Whether acquired before, after, or at the time a will is executed, assets covered by no provision of the will are not disposed of under the will. Ms. Aldrich's will does not say the first thing about real property in Putnam County or a non-IRA account at Fidelity Investments. The will cannot therefore dispose of these items not because they are after-acquired, but because no provision of the will covers them.

The remarks of Judge Barbara J. Pariente are particularly instructive for anyone who is considering creating an estate plan without using a qualified estate planning/elder law attorney: 

While I appreciate that there are many individuals in this state who 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 therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance.  As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees — the precise results the testator sought to avoid in the first place.

To Judge Pariente's remarks I add this: Remember that any errors, omissions or ambiguities in your estate plan will likely remain undiscovered while you are alive. Your will has to clearly speak for you because you will not be around to explain what you really wanted! Please see an experienced and knowledgeable estate planning attorney to make sure that your wishes are honored when you are no longer around to speak for yourself.  

You can read the text of the Florida Supreme Court decision here

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