A recent story reported in the ABA Journal highlights the potential dangers of using DIY (do-it-yourself) legal forms, such as wills. A woman in Florida, Ann Aldrich, used a premade DIY legal will in 2004. The will allowed her to make choices about the kind of inheritances she wanted to leave. In it, Aldrich stated that she wanted her sister to receive all of her property upon her death. However, the will also stated that if her sister were not alive at that time, her brother should receive her entire estate.
Unfortunately, the document Aldrich used was deficient in several ways. Because of these deficiencies, Aldrich’s nieces, who were not mentioned in the will at all, actually ended up receiving a part of her estate.
There is no legal requirement in any state, including Colorado, that you hire an attorney to help you create any kind of estate planning document. As long as your will meets some basic legal requirements, a court will accept it as a valid expression of your last wishes.
However, there is a lot more that goes into making a good last will and testament than simply meeting the legal requirements. In the Aldrich example, Ms. Aldrich failed to create a will that included a specific, yet non-required, element: a residuary clause. A residuary clause is designed to pass the portion of your estate that the will doesn’t directly address. In other words, it’s a kind of safety net that you can use to account for all the property you don’t otherwise specify as a gift through the will.
Wills are designed to allow you to leave inheritances, but you can do this in multiple ways. In the Aldrich example, the DIY will she purchased used some language that allowed for parts of her estate to go unaddressed. The court in this case determined that because the will didn’t specify how the property the will failed to address should pass, it should therefore pass in accordance with Florida’s intestacy laws.
Intestacy laws establish a pre-existing inheritance plan that applies to all estates that are not covered by a will. It also applies to situations, such as in the Aldrich case, in which the will is defective in some way.
The great benefit of any will, including a DIY will, is that it allows you to make inheritance choices. However, if the document you create is somehow deficient or defective, the pre-existing intestate inheritance rules will apply your property. In the Aldrich situation, her nieces inherited part of her estate because Aldrich failed to create a will that adequately protected her choices. This is one of the great dangers of creating a DIY will.
If you have any questions about Wills or Living Trusts, please contact our office. We put on helpful Estate Planning Workshops regularly that give a wealth of information on Wills, Trusts, nursing home asset protection, and more. You can register for one of those workshops here.