“Nothing can be said to be certain, except death and taxes.” – Benjamin Franklin
This quote by Benjamin Franklin is probably the most succinct and accurate statement as to why estate planning is best carried out with the help of a knowledgeable and experienced attorney. Over the past few years, a number of websites have begun to offer a quick and inexpensive method for individuals to put together seemingly “simple” estate planning documents, such as living trusts, advanced directives, and wills. While this method would surely save the estate planner some time and money in the short-term, it is clear that such shortcuts can surely backfire after the testator has passed away, leaving his or her beneficiaries to bear the costs and burdens of litigation to interpret a will that was created without the benefit of effective legal advice.
The advent of online estate planning service providers has led to the creation of a Task Force by the American Bar Association Section of Real Property Trust & Estate Law to address some of the pitfalls and problems that can arise when a person attempts to put together an estate plan without the help of an experienced estate planning attorney.
A New Jersey case entitled Matter of Will of Feree provides an excellent illustration of the problems that can arise when creating a will on one’s own, which prompted the creation of the Task Force. Mr. Feree obtained a pre-printed will document, filled in the blanks with his final wishes using his own handwriting, and had his signature witnessed by one person. Shortly thereafter, Mr. Feree committed suicide with that document being the one and only will for Mr. Feree. In that document, Charles Creel, the plaintiff in the case, was one of the named beneficiaries; however, he was not an heir under the state’s intestacy laws. Thus, if the will was not admitted to probate, Mr. Creel would not be entitled to any portion of Mr. Feree’s estate.
The court first determined that the document did not comply with the state’s formalities regarding will formation because the state required that every will be witnessed by at least two persons, and Mr. Feree’s will was executed in the presence of only one witness. The court, however, went on to note that one exception to this rule existed: a holographic (i.e. handwritten) will could be admitted to probate under such circumstances.
The problem with the document used by Mr. Feree was that it was almost entirely pre-printed, and his handwriting only constituted a small percentage of the document itself. The court noted that the entire document had to be in the handwriting of the testator, while the document at hand was such that not even one single paragraph was entirely handwritten by Mr. Feree. The court then concluded that Mr. Feree’s “will” did not meet the state’s requirements for will formation, and refused to admit the will to probate, much to the dismay of Mr. Creel. While the document itself was probably the last and only representation of Mr. Feree’s final wishes for how to dispose of his property, the fact that he did not comply with the state’s requirements rendered his wishes moot, and his property was disposed of to his heirs at law according to the state’s intestacy laws.
Complicating matters further, even if a person complies with state laws regarding will formation, the laws pertaining to estate taxes are constantly changing and have become increasingly complex. Therefore, it is highly advisable to engage an experienced estate planning professional in order to ensure the validity of estate planning documents, prevent unnecessary litigation among estranged family members, and minimize estate taxes that could drastically reduce the value of an estate and monetary gifts intended for the testator’s loved ones. If you or someone you know is in need of estate planning guidance, do not hesitate to contact the experienced estate planning attorneys at Chepenik Trushin LLP for an initial consultation.