The Dangers of Preparing your own Will or Having a “Non Estate Planning Attorney” Draft your Plan
Updated: Sep 9, 2022
Using an online service to prepare your will can result in costly mistakes and may altogether fail to properly transfer your assets. Even if you have a relatively simple estate and plan to leave all your assets to your spouse or children, an estate planning attorney provide for family situations that an online will cannot.
Proper Provisions in a Trust/Will
You may also fail to consider include certain provisions in your will. If you have minor children, you must create trusts that are triggered upon your death. What if your spouse or beneficiary was disabled and needs to inherit the assets through a supplemental needs trust? If you are not aware of the difference between non-probate and probate assets, you may not be allocating your assets in the manner you intend.
Additionally, if certain factors are present, it may be advisable to avoid probate all together and create a living trust. An online service cannot provide the necessary guidance and planning to properly navigate these situations. An estate planning attorney is able to use years of experience to guide the client in the process.
Proper Execution of a Will
In Missouri, for a Last Will and Testament to be considered valid the following formalities must be followed in its execution: (1) The instrument must be signed at the end by the testator; (2) The testator must sign the instrument in the presence of the attesting witnesses; (3) The testator must declare to the attesting witnesses that the instrument is his or her will; and (4) There must be at least two attesting witnesses.
When an attorney supervises the execution of a will a presumption of due execution arises, meaning that there is a presumption that all of the proper statutory formalities were followed when the will was signed. If the will execution ceremony is not supervised by an attorney, this presumption does not exist. In order for the Probate Court to admit an unsupervised will to probate, it must be satisfied that the will was properly executed. If a lay person executes a will themselves without attorney supervision, they run the risk having the will denied probate.
If you execute your own will at home without the supervision of an attorney, there is no presumption that the will was executed property. If you did not execute the will properly and did comply with the above-mentioned formalities, then you run the risk of having that will declared invalid and that disinherited child would inherit even though it was contrary to your intentions.
Do it Yourself Estate Planning Blunder
At Vitale Law Firm, we have seen some do-it-yourself estate planning blunders. One of the most memorable is an estate where the testatrix wrote her own will on a legal pad. The terms of this will gave the decedent’s entire estate to her boyfriend of over twenty years. This will was executed in the hospital in the presence of two nurses. At trial, both nurses testified that they knew that the document for which they were acting as witnesses was a will, despite the fact that the testatrix never stated that the document was her will. Both witnesses were clear in their testimony that the testator never declared the document to be her will, despite the title of the document clearly stating that the document was her will.
After a trial on the matter, the court held that testimony of the witnesses did not support due execution. This was because there was no publication of the instrument offered for probate as the testator never declared to the witnesses that the instrument was her will.
General Practice Attorney Mistakes
Another Common Mistake is having a general practice attorney draft your Estate Plan. Upon passing the State Bar Exam an attorney is determined to be minimally competent to practice any type of law within the state (with a few exceptions) …. Key words here.. MINIMALLY COMPETENT.
We recently had a client come to our office for a review of their previous drafted EP… They had a general practice attorney do the work… the attorney’s practice was focused around; personal injury, family law, workers comp, landlord tenant, business, criminal, etc, etc. They had been in practice for almost 40 years.. So one would assume they knew what they were doing, a review of the documents told a different story. The Will and Power of Attorney were poorly drafted and improperly executed. They did not meet the client’s intent… and when client asked the attorney about what the documents did, the attorney responded, “Don’t question me, I am the attorney!”
What did those documents do? Well… the POA went into effect upon immediately upon signature of the client *more on this later*. Best practice in most circumstances is to have a “Springing POA”, with the POA becoming effective upon the client’s incapacity, as determined by two medical doctors. However, this POA gave full authority to the client’s Agent control all of their financial and health matters; control of bank accounts, loans, life insurance, amending estate plans in their entirety. Fortunately, the Agent was trustworthy person and did not take advantage of this situation… but as you can imagine had they been unscrupulous some serious damage could have taken place. The saving grace here was that the document was not properly executed, the attorney had failed to ensure that the documents were properly notarized, making them ineffectual.
The Will was also equally as poorly drafted and executed improperly.
At the end of the day, paying a competent estate planning attorney to properly prepare and supervise the execution of your will and other estate planning documents is far less costly than litigating over the validity of a will in the Probate Court. This will save your love ones a lot of time, money and aggravation after your death.
With the client's permission I have added the POA with my notes (redacted info).... Please don't fall victim to this..
KEVIN SHAUN VITALE
VITALE LAW, LLC
107 Creekside Office Park, Wentzville, MO 63385
Telephone (314) 759-6400