Friday, April 04, 2014

It's legal to write your own will, but here's how it can go terribly wrong

Plenty of WV seniors call WVSLA to ask if it's legal to handwrite your own will. The short answer is yes, it is. But if the reason you are writing your own will is to make sure your estate is distributed a different way than the law would if you died without a will, making your own will is not a safe solution.

When you hire an attorney to do a will for you you are getting more than just a paper with the blanks filled in. The real value of having a lawyer starts with the questions you answer about what you really want, what you really don't want. A good attorney will not only carefully craft a personalized document to prevent what you don't want and secure what you do want, but will likely also bring up considerations that you never even thought about.

Another important role for your lawyer is to be sure the language of the will is legally effective to carry out your wishes, as well as provide for various possible circumstances that may exist at the time of your death. Legal documents generally use the same English language that we all use everyday, but often those words have a totally different legal meaning than our normal everyday usage. You can be well-educated and intelligent and know what a word or term means, but it may mean something else entirely in the context of a legal document.

Using a fill-in-the-blank legal form can be just as dangerous as handwriting your will for many of the same reasons. Check out this case in Florida, as reported in the ABA Journal online yesterday:

Ann Aldrich used an “E-Z Legal Form” when she made out her will in 2004, a decision that proved to be a good choice for two nieces who cited the document’s lack of a residuary clause.
In a decision issued last week, the Florida Supreme Court ruled for the nieces, though they weren’t mentioned in the will. The court said money acquired by Aldrich after the will was made out should be distributed under the laws of intestacy, which govern distribution of property for those who die without a will. The reason: The E-Z form did not have a residuary clause providing for the disposition of property not listed in the document. FlascBlog: The Florida Supreme Court Blog reports on the opinion.
Concurring Justice Barbara Pariente saw the ruling as a cautionary tale. “While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer,” Pariente said, “this case does remind me of the old adage ‘penny-wise and pound-foolish.’

One of the commentors on the article gave another great example, where a woman wanted her niece who played piano to inherit her piano, bench, and sheet music, but left the rest of her estate to her church. In her handwritten will she forgot the comma between "piano" and "bench" so the niece only got the bench and the music, no piano! Expensive missing comma.

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