A recent story in the ABA Journal tells the tale of Ann Aldrich, a Florida woman who used a DIY (do-it-yourself) last will and testament much to the delight of two of her nieces. Even though not given an inheritance through the will, the nieces ended up inheriting a portion of the Aldrich estate because a Florida court found that the document Aldrich used was partly deficient.
Even though Aldrich’s DIY will actually complied with the basic legal requirements imposed under Florida law, it was not comprehensive in its protections. Like many DIY estate planning documents, the will at issue in the Aldrich case is emblematic of the potential issues that can arise when people create estate plan’s without a lawyer’s advice.
DIY Documents and Legal Requirements
The Aldrich case, though it arose in Florida, could have happened in any state. Like all other states, Florida does not require people to hire a lawyer to make a will or any other kind of estate planning device. Also like all other states, Florida does impose some specific legal requirements that people have to meet if they want to create a legally valid last will and testament. While these requirements are rather easy to meet, simply creating a document that meets these basic necessities does not mean you have created an effective last will and testament.
Inheritance Choices, DIY Wills, and Intestacy
Aldrich decided to leave her estate to her sister, or if her sister failed to survive her, her brother. Her sister died before Aldrich did, so her brother stood to inherit all of her property under the will terms. However, there were two key problems with the will Aldrich made.
First, Aldrich made her will in 2004 and stated that she wanted her brother/sister to inherit all of the “listed” property she included in the document. Because she didn’t die until years later, and failed to take the appropriate steps to update her wishes, to document she created in 2004 didn’t address after-acquired property.
Second, Aldrich created a document that failed to include a “residuary” clause. Though not required by law, residuary clauses are absolutely essential. They essentially serve as a safety net, allowing you to transfer property you don’t otherwise specifically address in the will.
So, when it came time to distribute her estate, the court determined that the property Aldrich failed to address in her will would pass to her nieces because of Florida’s intestate succession laws. These laws, present in all states, pre-determine who stands to inherit from people who die without a will, or those who leave behind wills that are either partially, or completely, invalid.
The legal requirements for a valid will or trust must be met to have an enforceable plan. Seeking out cut-rate solutions in estate planning carries with it great risks. To make matters worse, the problems in such documents are typically not discovered until after death when it is not possible to correct the problem. Like this example, expensive, time-consuming and often unpredictable court decisions may result. It is better to work with an experienced and qualified estate planning attorney so that you, and not a judge, decide where your estate goes.
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