Between a Rock and Hard Place

Bill Cornwell lived in a Greenwich Village brownstone with his same sex partner for 50 years. When he died two years ago, his will left the building and all of his possessions to his partner. However, the will was only witnessed by one individual while NY law requires two witnesses. Without a valid will, his estate will pass to his closest living relatives who are his nieces and nephews who recently sold the building for $7 million. The partner has since filed suit trying to prove that he and Mr. Cornwell were actually married, although they were not, so he can be considered the closest heir.

So many points and such short attention spans:

1. All wills require two witnesses not related to the individual and who will not receive any assets under the will.

2. Using a DIY will kit could lead to problems with properly executing wills (among other issues)

3. The legal arguments made by the partner verge on stupid. One of them is that even though they lived in NY, which does not recognize common law marriage, they bought a dog in Pennsylvania in 1991 as a symbol of their commitment to each other and because Pennsylvania used to recognize common law marriage they should be considered as married.

4. The 85 year old partner would be better off dropping the law suit and accepting the offer of the nieces and nephews to live in the apartment for 5 years at a monthly rental of $10 and receive $250,000 upon the sale of the building.

5. The entire problem could have been avoided if they had simply married each other once gay marriage became legal.

6. One niece claimed, apparently with a straight face, that her uncle did not want his partner to inherit or he would have properly executed the will. She also suggested that perhaps the men were just friends or great companions. The address of the rock under which she lives is unknown.

DIY = Disaster Is Yours

A Minnesota woman signed a will in 2006 naming her grandson and a former employee as equal beneficiaries of her estate.   She tried to revoke the will in 2008 and leave her entire estate to her grandson by writing and initialing several changes on a photocopy of the will.  In 2010, she downloaded a DIY will from a website and hand wrote her intent to leave her entire estate to her grandson, but she did not have it properly witnessed.  She died in 2013 and all 3 wills were presented for probate.  The local probate court held that the 2006 will was still in effect because the 2008 notes on a photocopy did not validly revoke the prior will and that the 2010 downloaded form was not validly executed.

Several quick points:

1.  In Ohio, a will can be revoked with a statement of revocation or physical destruction (i.e. shredding or tearing) of the prior will.

2.  I generally retain the original wills of my clients to prevent them from trying to alter their wills by writing on them.

3.  I will once again quote the mechanic from the '70's Fram oil filter commercial (because I am from Greenville, Ohio and we had  a Fram oil filter plant in my long ago youth):  "You can pay me now or pay me later."  I would have billed her $600 to implement her wishes. Instead, her estate spent thousands and her wishes were not followed because she did not follow the simple formalities for signing a will.  The now long ago former employee is forever grateful for her short sighted thriftiness.

Estate Planning Myths

Forbes discusses 10 common estate planning myths, all of which I have heard.  The most egregious myths are that without a will the state will inherit one's estate and that having a will allows one to avoid probate.  Of course, neither is true which is why they are myths. 

Personally, the myth I am most vested in is that people need an attorney to draft a will. For reasons stated previously on this page, the cost of retaining an attorney far outweighs the downside of an error or not addressing an issue.  Just ask the illegitimate child who inadvertently inherited a share of an estate or the children from the first marriage who were disinherited entirely in favor of the second, late in life spouse.   

DIY Wills

Consumer Reports reviewed 3 on-line will preparation services.  Their conclusion?

"Unless your needs are simple—say, you want to leave your entire estate to your spouse—none of the will-writing products is likely to entirely meet your needs. And in some cases, the other documents aren’t specific enough or contain language that could lead to an unintended result."

When a client has an attorney prepare a set of estate planning documents, the client is paying for more than an attorney to correctly insert the names in the document. He is also receiving the attorney's years of wisdom and experience in administering estates, knowledge of state specific laws, and general knowledge of human interactions through the estate process.

My conclusion? The difference between the attorney's fee and the cost of a DIY package is small in comparison to the cost of a mistake or overlooking an issue in a self-prepared will.