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DIY Last will causes trouble for an elderly lady and a windfall for her nieces

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We live in a do-it-yourself world--always on the go, never enough time. But while some things are perfectly suited for the DIY approach, others simply aren't.

Take the story of Ann Aldrich, an aunt to two nieces (their father, one of Ann's brothers, had passed away years before) and a sister to three siblings, only one of whom (another brother) was living at the time Ann died. In 2004 Ann ordered an "E-Z Legal Form" do-it-yourself will, presumably at only pennies on the dollar compared to what an attorney's fee might have been.

Ann's will left all listed property to a sister, and if her sister didn't survive her, to her living brother. (Remember the nieces' father, another brother of Ann's, had already passed away; neither he nor the nieces were identified in Ann's will.) When Ann passed away, her sister had already died, which left only Ann's living brother as her sole heir.

A simple reading of Ann's will seems to indicate she wanted everything to go to her brother. Sounds easy, right? Wrong. The Florida Supreme Court had to get involved.

Little did Ann know, her DIY will lacked a "residuary clause"--which turned out to be a major windfall for her nieces, who were not even mentioned in her will.

In the decision issued recently by the Supreme Court in Florida, the justices ruled for the nieces. Because Ann's will only referred to all “listed” property, the Court reasoned that any property not “listed” was not governed by the will--which by definition included assets not acquired after 2004. The Court's opinion clarified that property acquired by Ann after her will was made in 2004, as well as pre-2004 property not listed in the will, should be distributed under the laws of intestacy, which govern distribution of property for one who dies without a will.

Under this law, the brother gets 50% and the nieces each get 25%. This is a much different outcome than the brother inheriting the full 100% of Ann’s estate as her will seemed to indicate she wanted.

As the American Bar Association reported:

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.’ …

“I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As this case illustrates, that decision can ultimately result in the frustration of the testator’s [Ann’s] intent, in addition to the payment of extensive attorney’s fees—the precise results [Ann] sought to avoid in the first place.”

It’s not the Court’s job to try to decipher Ann’s intent beyond what the black-and-white text says. So while common sense might dictate that Ann did not intend that her nieces inherit from her, the Court cannot stretch the words of Ann’s will beyond their plain meaning on the paper. Justice Peggy Quince wrote, because Ann’s will referred only to “listed” property, “it is clear that [Ann] did not intend for any property not listed to be distributed by the will. Any other interpretation of [Ann’s] actions would require this court to rewrite the will to include provisions regarding property for which [Ann] made none.”

Why did this happen? What can we learn from Ann’s unfortunate case?

1. No legal advice. By utilizing a DIY last will, Ann didn’t receive any legal advice as she thought about her legacy. She made an assumption that she could create a legal document cheaply and that this document would be just as effective as if she had visited an attorney.

But DIY legal form sites are little more than document mills that churn out the same basic generic form over and over. Nothing about a generic form is personal to you, and it may end up being a very far cry from conveying your true intent. Ann’s case is a great example--two family members excluded from her will ended up with half her estate.

Plus, if you use a fill-in-the-blank form, who will be there for your family after you pass? How will your family know how to navigate the process? They’ll find a lawyer who is as much a stranger to them as he or she was to you.

2. One size does not fit all. Every family is different. Every person is different. Your values, insights, stories, and experiences are very personal to you and are worth discussing when you’re talking about the legacy you’re leaving behind. The one-size-fits-all approach of DIY estate planning assumes that you’re just a cog in a wheel--no different from the next person. But that’s not true, is it?

Some of the most heated disagreements following one’s death are not over money but over the “little things.” Do you have a specific item that you want left to a specific person, such as a piece of jewelry for a sister, or a piece of art for a best friend, or a piece of real estate for a certain family member? Or even a specific memento for a certain child whose heart you know will ache for that one item as a remembrance of you after you’re gone? A generic online form can't ensure these desires are covered.

3. Save now, pay later. One may think they are saving money with a DIY form as compared to hiring an estate planning attorney, but the comparison isn’t really that fair. The services are entirely different.

An estate planning attorney helps you design an estate plan that caters to your very personal needs and desires. Your attorney will draft a plan designed to keep your family out of court, even if there are initial disagreements or conflict. Your attorney will advise on how future-acquired assets are handled by your estate plan (something Ann wasn’t advised on at all). And your attorney can assist with questions related to retirement and long-term care and how these future decisions might affect your legacy left for your family. No online service can do this.

So while you may be “saving” money in the short run, your family and your estate suffers in the long run. The typical cost of probate is around 5% of the value of what’s involved, versus only 1%-2% when you do planning with a qualified attorney. That’s a huge savings.

And perhaps most importantly, your estate planning attorney will be there for your family after you’re gone. The people you love will need someone to turn to and they’re going to be looking for that someone during a time of grief.

It’s a gift to your family to have someone you trust ready and able to step into this role rather than having your loved ones search the yellow pages and picking someone--anyone--out in a hurry.

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About the author: Bonnie Bowles, Estate Planning Attorney and Organized Mom, is the Co-Founder & Co-Owner of Wills & Wellness, a friendly and approachable law firm helping families with their very important estate planning and ensuring their estate plan matches their goals, concerns, and desires exactly. Bonnie educates families on the pitfalls of probate and how estate planning that focuses on serving you for your lifetime can help. If you want to have an estate planning "check-in," check out Wills & Wellness, contact us below, or call 720-266-8190 today.

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