It is human nature to want to save money. One area that is often discussed involves consumers take care of simple, routine legal matters themselves. Why force someone to pay an attorney if one is not needed? The problem is in determining what is a simple matter that does not require an attorney’s assistance.
People often think estate planning falls into this category. After all, it is assumed that wills, powers of attorney, and even trusts, are routine forms that anyone could simply fill in for themselves. Why should an attorney be needed?
As with many things in life, the answer depends on the individual’s skill and risk tolerance. The recent Florida case illustrates what can happen with the typical use of a do-it-yourself (“DIY”) will.
The first sentence of the statement of facts in the case of In Re Estate of Aldrich, the Court stated that on April 5, 2004, Ms. Aldrich wrote her will on an AE-Z Legal Form. Ms. Aldrich itemized her assets in her DIY will, leaving them to her sister, Mary Jane. If Mary Jane died before Ms. Aldrich, these itemized assets would have passed to Mr. Aldrich. Unfortunately, Ms. Aldrich appears to have not appreciated the importance of a residuary clause and failed to leave such a clause in the will. Perhaps Ms. Aldrich did not understand the distinction between specific and residuary bequests.
Ms. Aldrich failed to update her will following Mary Jane’s death. Ms. Aldrich inherited cash and land in Florida from Mary Jane. Upon Ms. Aldrich=s death, her estate was probated.
Ms. Aldrich’s two nieces entered the scene and claimed an interest in the cash and Florida land which Ms. Aldrich had inherited from Mary Jane. The nieces claimed that since Ms. Aldrich’s Will did not specify the cash and land, and did not contain a residuary clause, that they received an interest in those assets pursuant to Florida’s intestacy laws. Of course Mr. Aldrich believed that all of the assets should go to him.
Mr. Aldrich put forth three (3) different arguments for why he should receive the entire estate under the Will. Nevertheless, even though he was probably correct that his wife intended for him to receive everything, he lost the case. While the Will was clear as to who was to receive the specific assets listed, it also failed to show an intent to dispose of anything else. Consequently, the Will’s silence regarding the cash and land did not allow the Court room to insert an intent. The Court was not going to revise the Will.
Under Florida law, as in common in most jurisdictions, if the Will does not dispose of all of the decedent’s property, such property will pass under that state’s intestacy laws. Failure to include the residuary clause in the Will resulted in those assets not specifically listed in the Will passing to Ms. Aldrich’s intestate heirs, which included her nieces.
About the Author
Jay R. Larsen is a partner of the Firm and practices primarily in the area of estate planning, tax problem resolution, asset protection, business formation, and probate. Mr. Larsen received his undergraduate degree in finance from the University of Utah (Summa Cum Laude) and his law degree from Brigham Young University (Magna Cum Laude). He went on to receive an L.L.M. in Taxation from the Washington School of Law, Washington Institute for Graduate Studies.
Mr. Larsen is a member of the Nevada and Utah Bar Associations, the Southern Nevada Estate Planning Council and the Tax, Probate and Trust Sections of the Nevada State Bar Association. Mr. Larsen authored the article “Avoiding Probate: Pitfalls and Perks,” Nevada Lawyer, Vol. 4, No. 3 (March 1996). He also has authored many articles for the Probate & Trust Review, the Firm’s newsletter, as well as articles for various continuing legal education publications. Mr. Larsen is a frequent speaker to private and public groups on Trusts, Probate, Estate Administration, Taxation and Wealth Preservation.