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Drafting Your Own Will - A Cautionary Tale

We live in an age where we can research almost everything online from diagnosing our illnesses to drafting our own legal documents. I won’t talk about the medical problems – I will let doctors deal with patients telling them what procedures to do and drugs they should take – but I am concerned about legal documents. Especially the “Simple Will”. I capitalize the “S” because so many people think that that is what a Will is – Simple.

To some extent this is true. It is easier and less costly to draft a Last Will and Testament than a Trust but it is still a legal document that has legal consequences. And if done incorrectly, the consequences can be financially and personally costly. This proved true for a client recently.

My client’s husband was terminally ill and after living on a college campus for over 30 years, they had to move because he could no longer teach there. They wanted to stay in the college town, so she contacted a realtor who found a one level home for her and her husband. In the midst of taking care of her husband and moving to a new home, she knew she also should do a Will. Unfortunately, she did not know an attorney or perhaps thought like everyone else – how hard can this be? So she went online and drafted one herself.

After her husband died, she took care of accounts and cars and thought everything was fine until six years later when she tried to refinance the home and found out that she had to remove her husband’s name from the house. She did not know this was a problem until the escrow agent said – you need an attorney. Turns out that the house was held as tenants in common instead of joint tenants with right of survivorship. This was unusual because since about 1987, realtors have been aware of the joint and survivor deed, and either they, or the attorney for the title company, usually ask what type of deed is needed and explain what that means. We will never know what happened in this case, but by the time my client came to me she had something that had to go through probate court. In spite of this, I did not expect it to be difficult because transferring a residence to a surviving spouse in probate court is not a full administration and can be done easily. Or more easily than other probates. But there were complications.

My client said that she and her husband had three children, but one of those children was her husband’s from a prior relationship. She considered all three of them her children, but legally there is a difference, and in probate this difference was important. If she had had a Will giving everything to her it would not have been a problem, but the document she drafted was a Will with a testamentary trust that gave her income only while she lived with no distribution of principal. Rather than go into the legal machinations that would be involved in probate court, suffice to say that this Will with Trust was worse than having no Will.

The short story, and the good news here, is that those three children loved her too and transferred their interest back to her after they received their shares from probate court. It took a bit more time and money, but ultimately the house will transfer to her name only.

This story could have had a different ending. There are children who would not have transferred their interest to their mother or stepmother. And family dinners – if they even happened again – might be forever changed.

People will still go online to diagnose illnesses and check prescriptions and draft their own legal papers. And sometimes everything is fine. But given the risks when it is not, maybe it makes sense to see an attorney. Even for a Simple Will.

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