This article is part of a larger series that presents a number of ways a will or estate plan could be challenged. Taking these potential threats under consideration is critical when planning your estate and they are often overlooked until it’s too late.
One of the most important steps in one’s life is creating an estate plan. Having a solid estate plan can determine not only your future, but the future of any benefactors such as children, grandchildren, and charitable organizations. Like any legal proceeding, everything must be carefully documented to ensure success.
There are several types of documents to consider when creating an estate plan. Each of these documents has different standards/requirements, some of which vary based on the state of residence and income level. Usually, for any legal document, there’s also a set of parameters regarding legal capacity that must be followed such as being eighteen years of age or legally emancipated if a minor. Checking state laws is a key step and hiring a highly regarded estate planning attorney will be able to verify that your will falls under legal guidelines.
In most instances, a will must be put into writing in order to be considered valid, but in approximately twenty states, oral wills are permitted under certain circumstances. Wills must be signed and notarized by several parties, most importantly the testator, which is the individual who makes the will. In situations where the testator is incapacitated, an elected official who goes through official channels can sign on your behalf. Witnesses are typically required to notarize the will, but in certain states, witnesses aren’t necessary in the case of holographic wills. Most states do not have the same set of strict guidelines for trusts, which don’t need to be executed with specific testamentary formalities. Both wills and trusts typically require notarization as in most states, it puts the document in a “self-proving” state. With notarization, witnesses already have signatures verified so they don’t have to be tracked down in an instance of contestation.
The execution process, although it appears to be one of the easiest steps in the officiation process, can actually be one of the messiest and most complex. The number of ways the execution process can be messed up is endless – something as simple as signing the document in the wrong order, having a witness out of the room during the official proceedings, and even forgetting to sign a document. Oversight from an estate planning attorney is essential to avoid some of these seemingly frivolous errors.
Sample Case: Taylor makes the decision to leave all of her assets to her best friend and finds an outline for a Will via a brief google search. After Taylor creates the will, she lets it sit for five years until she passes away due to a medical condition. Taylor’s friend, Abby, receives the will after Taylor’s untimely demise and goes to her bank. She speaks with a teller about how to notarize her signature and get anything the will left. Abby is invited back to the bank supervisor’s office where the document is signed and THEN she returns to the front, asking two additional bank employees to officially witness the document. In this case, neither witness physically say the bank supervisor and Abby signing the Will so it is deemed invalid
Unfortunately, these types of issues don’t surface until death. Once the creator of the will dies, the will can’t be amended or changed. When an issue like this arises, anything under the will falls under intestacy laws within the state the will was made in.
The easiest way to avoid this challenge is to work with an estate planning attorney. Any reputable estate planning attorney would have confirmed that Abby needed witnesses to be in her presence to validate the will. From a short term perspective, money has been saved by all parties by electing to not get an estate planning attorney, but in the long run, the surviving party suffers because the will is invalid.
