Sep 8, 2015

Do-It-Yourself fine for some things - not for your estate planning!

A friend of mine likes to do - or more aptly, likes trying to do - his own home repairs. He enjoys the challenge. He enjoys saving money. And he reasons that if he messes up a project, he can always bring in an expert to fix it.

Doing it yourself is fine when it comes to painting, patching and plumbing. But it's a terrible approach to take to your estate planning, because any mistakes you've made will be discovered when it's too late to do anything about them. You won't be around to call in a professional to repair the damage. Your loved ones and the courts will be left to mop up the mess, and your "project" may turn quite differently, and unpleasantly, from what you envisioned.

The public should keep in mind the perils of do-it-yourself estate planning because downloadable, ready-made legal forms are increasingly available, and advertising for services like Legal Zoom have become ubiquitous. There's no question that it's tempting to save money on legal fees. I am all for frugality, but crafting an estate plan that conforms to the law and meets your goals is not like slapping up a new coat of paint. It's not a suitable do-it-yourself project because it's more complicated than most people think, and the stakes are too high. A recent story out of Minnesota illustrates the point:

Minnesota resident Esther Sullivan passed away in 2013, effectively leaving three wills - from 2006, 2008 and 2010. The courts were left to figure out which of them was legally valid, as well as interpret what Sullivan really wanted to accomplish.

The original will was signed January 19, 2006. It gave Sullivan's former employee half of her estate, and a lesser share to her grandson, Joseph. In 2008, Sullivan apparently changed her mind. She marked up a photocopy of her original will, modifying it to give Joseph half of her estate. She initialed her handwritten changes, signed and dated each page, and wrote at the top that the will "dated January 19, 2006 is void" and should be replaced "with this and all written changes."

In 2010, it appears Sullivan had another change of heart. She downloaded a generic will form from the internet, and filled in the blanks to indicate that Joseph was the sole beneficiary, cutting out her former employee entirely.

You can guess what happened when Sullivan died. Her former employee contended that the 2006 version of the will, giving the employee half of the decedent's estate, was the valid one. Joseph argued that his grandmother had obviously changed her mind and her most recent will, the 2010 will making him sole beneficiary, was the valid one.

The court concluded that Sullivan probably did want to revoke the 2006 will. Nonetheless, the 2008 marked-up photocopy was not a valid way to revoke it. Plus, the photocopy was not even properly executed. As for the 2010 will, it did not conform to the state's requirements for a legally valid will. The issue made its way through the court system, and eventually to the Minnesota Appeals Court. Ultimately, the 2006 will was deemed to be the valid one. Joseph got less than it appears Sullivan intended. And also more: A slew of legal bills. You can read the Minnesota Court of Appeals decision here.

So please, folks: Save the do-it-yourself projects for the patching, painting and plumbing. Leave your estate planning in the hands of a capable estate planning lawyer.

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