Risks of Do-It-Yourself Estate Planning, Part 2: Improper Execution
Do-it-yourself estate planning and document drafting is something that’s gotten a lot of attention lately; it was one of the first things I wrote about on this blog.
I revisited the issue in Part 1 of this blog series, where I discussed the big problem with do-it-yourselfers when it comes to estate planning documents: there are no do-overs. If you make a mistake with your plan, the obvious nature of estate planning is that you will not be around to fix it. This can cause expensive court proceedings and put additional emotional and financial pressure on your family during a time when they are already under an enormous amount of stress. It also can completely capsize your planning goals. These mistakes are the rule, not the exception; most probate attorneys will have more stories about do-it-yourself catastrophes than successes. So what are the big things that trip up a do-it-yourself plan? Some are obvious, some less so. This week I’ll discuss one of the most common (and most obvious) problems with these documents:
2. Improper Execution
A frequently cited case about do-it-yourself estate planning kits is In Re Will of Feree (369 N.J. Super. 136). In this case, a man created his will from a do-it-yourself kit he purchased, and signed the document. After he died the will was presented to the probate court; because the will did not have proper witnesses, it was deemed invalid, and was set aside. The family tried to appeal what seemed to them an obviously incorrect probate court outcome; tens of thousands of dollars later it was affirmed that an improperly witnessed will is less valuable than the paper it’s printed on. This is a typical case, and you don’t have to do a lot of legal research to find similar situations. If you take an hour to observe some probate proceedings in Hennepin County, you won’t have to wait long to see a judge set a will aside for not having the proper signatures (but I wouldn't recommend this as an efficient use of your time).If an estate planning document does not have the correct signatures and witnesses, it is not an estate planning document. A will without witnesses is not a will. Consider if I created a “contract” for services, the gist of which is that you owe me a million dollars. Assuming you never signed such a thing, and I tried to enforce it against you, would I succeed? Probably not. Intricacies of contract law aside, if you haven’t agreed to the terms of the contract, the contract doesn't exist, even though I am holding a piece of paper that says “contract” at the top of it. The same applies for your will: you can call it a “will” if you want to, but without the right formalities, it’s just a pile of scrap paper.
How to Avoid the Problem
Improper execution is probably one of the easier mistakes to avoid, yet is one of the most misunderstood and one of the most common reasons a will is set aside by the probate court. After all, the logic goes, if I put my wishes in writing, that’s what my family will do, right? But of course it’s not up to the family — the probate process is a legal one, and in our country of laws, the rules created by the legislature are what governs. There are a few states that recognize “holographic” wills — these are wills that are typically hand written and don’t have any witnesses at all. Minnesota is not one of these states. If your will is not witnessed properly, then the probate court will set it aside and will apply the Minnesota intestacy statute. Improper execution of estate planning documents is just one of the problems probate attorneys see every day. Of course, an estate plan with proper signatures is still only as strong as the plan itself, and most people who write their own will tend to confuse estate plan with estate document. They are very different things; a properly executed document that represents a poorly conceived plan could actually cause more problems than no will at all.
I’ll discuss this further in my upcoming additions to this series. Until then, please let me know if I can help.
Philip J. Ruce creates wills and trusts for families who want to feel secure that their loved ones are cared-for. Philip is a trust and estate attorney based in Minneapolis, Minnesota. Philip is the author of Trustee University: The Guidebook to Best Practices for Family Trustees. available at Amazon.com in paperback or Kindle edition (free chapter available here!) He also works with trustees and beneficiaries who need help with their trusts. You can contact him here.