When Your Last Will and Testament Does Not Control Your Estate
Recently I met with a family who was grieving their father they had lost after a long illness. Their father wanted to keep things simple and private, so he chose to write his own last will and testament without the aid of an attorney. His decision resulted in a mess for his family to deal with after his death because although his will was valid and was entered into probate, it did not properly specify some of his decisions.
Sadly, this family now had additional and unexpected emotions of frustration and guilt to deal with in addition to their expected grief. They were frustrated that their father left such a mess for them especially knowing that it could potentially heighten the risk of disagreement among the children. And they felt guilty for being frustrated with their father. Unfortunately, I did not have a satisfactory answer for the family as I attempted to help them. This scenario plays out quite often.
When a last will and testament is lacking, the testator (the deceased person the will belonged to) usually did not know they were leaving a mess behind, rather the issues surface after their death when their executor is trying to enter the will into probate and settle the estate. When there is an issue with the will, the state’s default statutes may be required to resolve issues, or the will may be held completely invalid, or result in litigation. Each of these outcomes are likely to cause a family rift, be much more expensive to resolve, and probably will not be the outcome the decedent intended.
I once had a family contact me whose mother wrote her own last will and testament which clearly indicated her life insurance and retirement accounts would be split evenly among her four children, but the actual beneficiary designation on those assets only named her youngest daughter. That daughter was the child who helped her mother with caregiving, errands, home maintenance, etc. so she felt entitled to that money. More importantly, that money was hers by operation of law because a beneficiary designation basically overrides the will. In retrospect, we do not know what the mother wanted, she may have assumed her daughter would share the proceeds with the other children or she may have wanted to reward her daughter for her service and dedication.
Writing a good last will and testament is not dependent on your intelligence or your proficiency with internet searches for estate planning advice. Attorneys are trained to assist their clients to achieve their goals and to spot issues that need special consideration. In today’s world where things are more complicated than ever, estate planning attorneys have furthered their training and knowledge for the benefit of their clients on those specific estate issues. If that mother had worked with an estate planning attorney, the attorney would likely have brought that conflict to her attention to be resolved prior to her death.
To make sure you do not leave a mess behind when it comes to your estate, take an actionable step toward your peace of mind by contacting an attorney. If it is difficult to find the time to call, many offices will let you submit a request to schedule through their website or to schedule a call to get the process started. Remember, it is never too early to plan!