What Seems to Be The Biggest Issues With Wills That You See In Your Practice?
November 1, 2017 | View PDF
The biggest issues that I see unfortunately occur after someone is dead when a new Will is now an impossibility. Some people will do a Will with a lawyer at some point in their life . . . . . forty years ago and never update it. An old Will that is defective in language or the kids in the Will are now grown with their own families can make the probate process considerably more difficult than it should be. The person who sees me for other estate planning that does not include a Will, I have come to realize needs to be encouraged to bring in their “old” Will so that I can review not necessarily what one wants done with their assets mentioned in their Will but whether the Will can be effectively used in probate. Of course I also get Wills not done by a lawyer that are defective because the person doing the Will either does a homemade version or may actually have a Will with the needed language but only obtains one witness, making it useless.
I have two Wills that I am working to probate now that are defective in that they are missing “self proving” language. The self-proving language is found in the Code of Alabama and the language in the Will must be substantially the same. One Will was done in Alabama and all witnesses are dead so there is no one to come forward to say that they saw the person sign the Will, that they were over 18, that they seemed competent and made their Will willingly. So there will be a Probate hearing before the Judge of Probate with the person that wants to act as the personal representative as another defective issue exists and will need to include another person familiar with the signature of one of the witnesses. The other estate lacking the self-proving language involves an Alabama resident but out of state Will. Fortunately a witness has been located in that other state but another process will be required in that other state.
Another big issue has been the naming of only a single executor/ executrix/ personal representative and that named individual died before the decedent did. So that creates additional issues requiring that the person desiring to be the personal representative be bonded based on the value of the estate and that an inventory be done with values of the estate assets. In that case the Will can be followed but a hybrid administration of the estate is required losing some of the main benefits of having a Will.
You may say you don’t have anything and don’t need a Will. Though there may be some non-probate workarounds, if you have anything that is titled in your name, i.e. vehicle, house or financial accounts, you have something that probably needs to be addressed in a Will.
Some things in our lives need updating every few years before the cost of repair becomes too expensive. Just like the cost of a car it’s an expense that most of us don’t want to deal with but it becomes necessary every few years. Wills, like cars can become “broken down” over several years. I want to encourage the readers to see a lawyer about a Will if you haven’t done one in the last few years. Just like I tell the clients that I see, “If you don’t have a Will the State of Alabama has one for you and you may not like where your stuff goes plus the personal representative has to be bonded and an inventory of your stuff has to be done”.
Let your heirs realize one day how smart you were to take care of your affairs and not let their grief multiply when they have to labor through additional steps to probate your estate.
This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.
"No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers."
Ronald A. Holtsford, Esq.
Ronald A. Holtsford, LLC
7956 Vaughn Road, Box #124
Montgomery, AL 36116