I appreciate your column, learn from it and read it carefully. Several of your recent readers have asked you questions about wills or what happens if someone dies without a will. I would like to add my experience to the scenarios you have already discussed over the past few months as it complements your discussion of the consequences of avoiding proper estate planning.
A court-appointed attorney once called me to tell me that my mother's cousin had died without a will. The deceased had no children, spouse or siblings. The estate was divided according to the closest relatives, in this case the six cousins of the deceased.
A lawyer contacted me. He set out to search for distant relatives of the deceased, as most of the six cousins were no longer alive. In fact, only one cousin survived the deceased person. The descendants of each deceased cousin were jointly awarded a share equal to one-sixth of the deceased's estate, less court and legal fees.
Therefore, about a year after this person died, my siblings and I each received an inheritance of about $9,000. The only cousin still alive at the time was legally entitled to one-sixth of the estate, almost $60,000. The law does not take into account whether a potential heir deserves or needs the inheritance, instead using subjective formulas, as anyone would expect.
Court documents
That makes sense, but I can't help but feel that the deceased cousin would not have wanted the majority of his estate to go to this extremely wealthy cousin who was advanced in age and had private estate worth over 30 million US dollars. This person received the largest share of the deceased's estate.
After the probate process was completed, I requested a copy of the court records to learn more about my distant relatives. Then I had an unexpected surprise: in the court files there was a document called “Last Will and Testament,” signed by a lawyer and the deceased, leaving her entire estate to my siblings and me, since our mother was the cousin , with whom the deceased worked. The deceased was closest to him.
When I asked the lawyers why they told me there was no will, they pointed out that the will had no witness signature. My mother's cousin had wishes, expressed those wishes in writing, signed the written will in front of a lawyer, but did not have the signature notarized.
As I learned through this experience, a signed will is not legally a “will,” even if drafted by an attorney and called a will, unless it is also witnessed. Maybe this is unique to our state, but it was a shocking lesson.
I hope that those who think that their handwritten signed notes are enough will think again, as you have warned so many times. The cost of the attorney's fee to prepare an official will is well worth the peace of mind it provides.
Yes, I would rather my hard-earned savings go to people and causes I care about, rather than distant relatives who are so financially secure that they wouldn't benefit from inheriting a portion of my estate. Creating a will or trust gives us one last chance to make a difference for others. Personally, I would like to get this as my final act.
What do you think of it?
I'm glad to have a will
Dear Mrs,
Her story is both alarming and, I suspect, not unusual.
A trust and estate attorney once told me that she had prepared the will of an extremely wealthy man, and when she visited his office, he showed it to her and showed where he kept it. He was pleased with the time they had spent putting it together and was happy that he had finally divided his estate in a manner that he felt was fair and equitable and reflected his wishes, charitable interests and his relationship with his family closest friends and relatives. There was just one problem: it was still in a sealed envelope where he thought it was safe. She pointed out the obvious and simple mistake: “You didn't sign it.” If a person with millions of dollars can make such a mistake, who's to say others will forget the importance of their John Hancock?
You are correct that the legal framework that determines whether a will is valid varies by state. In New Jersey, for example, “a will must be signed by the deceased or by someone authorized to sign for the executor, according to Bratton Estate & Elder Care Attorneys.” “The will must also be signed by at least two other witnesses. In order for the signature of these witnesses to be valid, the signatories should add their signature to the document as soon as possible. New Jersey accepts handwritten wills, whether notarized or not, as long as it can be clearly demonstrated that the document was intended to be the deceased's will. The document should also be clearly identifiable as being written in the deceased’s handwriting.”
Believe it or not, some people still want to handwrite their wills, but holographic or handwritten wills are only legal in about half of U.S. states, including California. Whether written or typed, always draft your will under the guidance of a trusts and estates attorney. Attention: It is not worth writing a will cheaply or downloading it from the Internet. Too many things can go wrong. Sometimes people leave behind possessions that no longer exist. (That Rolls Royce? He sold it to pay the taxes on his house.) Or they leave their entire fortune to a lucky cousin and five others show up to claim their share of the estate. (“I leave my entire estate to my cousin John Murphy.” Is there more than one cousin named John Murphy or, worse, some people have neglected to fully name the person?)
Online wills are often offered for free or at low cost, but may be poorly drafted. Words are important. “If a will specifies that property should pass to a man's 'surviving wife and children,' what happens if the man had two ex-wives and several children from other marriages?” asks the law firm Landskin and Ricaforte. “On the other hand, suppose the same man had three daughters and left 'equal shares of the estate' to my descendants.” The will was drawn up when his children were teenagers, but two of them had a child of their own when he died. The term “descendants” includes children, grandchildren and great-grandchildren, allowing his children and grandchildren to receive a fifth of the estate – although he intended to give each daughter a third.”
It may also be the case that the provisions of a will should be set aside. For example, you can typically challenge a will or trust on the following grounds: lack of testamentary capacity, undue influence from a family member, and improper execution of exactly what happened to your distant cousin's will. If he had signed his own will, his estate would have been distributed according to his wishes and you would likely be in a more comfortable financial situation. I have received too many letters about relatives or “new friends” or even caregivers isolating the elderly, signing themselves up as co-signers or co-owners on their bank accounts, and forcing the person to write a new will.
According to a 2021 Gallup poll, fewer than half of Americans have made a will, although three-quarters of people age 65 and older have made one. Only 20% of adults under 30 have a will. “Higher-income Americans are much more likely than lower-income Americans to report having a will,” Gallup said. College graduates and white Americans are also more likely to have a will. The biggest mistake many people make is not writing a will and leaving no estate plan at all. After building a lifetime of wealth, whether it's worth $500,000 or $5 million, it's a shame to leave the decision to state law.
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