The Internet has allowed families to prepare basic estate planning documents from documents on-line and at affordable prices. However, the increase in affordability and convenience found on the web has created a false sense of security and inadequate planning that has caused disasters for many families as many do it yourself estate plans fail to provide the kinds of benefits and protections that one should typically be afforded in a well drafted and planned estate. Here is a summary of the top three mistakes I’ve seen from individuals who completed their estate plan on their own. The sad reality is that two of these three mistakes listed below are from actual clients who hired me to represent them in a lawsuit with other families/heirs in probate court because their parent made a drastic mistake when completing their estate plan on their own.
1. Improper Signatures and Witnesses for Wills- Most states require the signature of the person creating the will as well as two witnesses to the will. The only exception to the two witness requirement in most states is a holographic will, which is a handwritten will with the signature of the person creating the will. Failure to adhere to the signature and witness requirements invalidates the entire will. It doesn’t matter how good it looks or how many terms you included, if the signature and witness requirements are not followed then the will is invalid.
2. Failure to Fund the Trust- Most individuals who create a revocable living trust on their own fail to actually fund the trust with the assets from their trust. Funding a trust means that you actually put the assets you want to be controlled by the trust in the name of the trust. For example, if you want your home to be subject to the terms in your trust then you need to deed the home out of your personal name and into the name of the trust. If the property is not deeded into the trust it falls outside the trust terms and your heirs will need to go to probate court to get a judge to approve any transfers of title to the property following your death. In addition to real property, stock or LLC ownership needs to be transferred into the trust and insurance, investment, and savings accounts should be put in the trusts name or the trust should be listed as a beneficiary. Failure to properly fund your trust will typically result in probate court for your heirs.
3. The General Forms May Not Address Your Unique Situation- Most families have at least one unique situation to their estate that is typically not covered by standardized documents found on the web. For example, perhaps you have a child who is financially irresponsible but the rest of your children are not. Do you know how to use the forms to create an adequate plan that takes into account the financially troubled child while at the same time not adversely affecting the inheritance of the children without financial problems? Or, maybe you have an estate that has more debt than assets. Do you know how to plan the estate to leave the most to your family and the least to your creditors? Or, perhaps you have assets in multiple states, or are married to a spouse with children from a prior marriage, or are a same sex couple in a state without civil unions or gay marriage. The list could go on and on but the unique situations that arise are rarely handled properly when you’re doing your estate plan on your own.
If you completed your estate plan without the assistance of a lawyer, consider having a lawyer review your documents to get an idea of your estate and your goals to ensure that you have the right estate plan for your family. Or, if you know your in need of a new plan, you can revoke the old do it yourself plan and can replace it with a new plan that has been carefully considered by an attorney experienced in estate planning. Please contact us at the law firm if we can be of further assistance at 435-586-9366.