Episode 5: In today’s episode, Louisville probate attorney David Holton explains 5 mistakes people make with a Will. This is an important document and if it’s not done properly, it can create many unnecessary delays, legal fees and unintended complications for the estate and its heirs.
As an attorney, David maintains 2 Louisville-area law offices. He has one in Fern Creek, near the intersection of Bardstown Road and Hurstbourne Parkway. His other office is located near where he grew up in Valley Station. It’s located on old 3rd Street Rd near the corner of Stone Street Road, near Prairie Village.
What Is the Purpose of a Will?
When a person dies, he/she either dies testate or intestate. Testate means they had a Will. Intestate means they did not.
Assuming the Will is properly executed, it’s enforceable and will dictate which heir receives what. Typically, the Will states that all necessary debts are to be paid by the estate. This would include taxes, executor’s fees, etc. The Will normally specifies who will serve as the executor, This person is the one who will oversee the estate and eventually the distribution of assets. The Will goes with then state how the assets will be distributed and to whom. It’s the decedent’s opportunity to hopefully avoid chaos that might erupt between the heirs with regard to their inheritance. Let’s dive into how you can avoid making the 5 Mistakes people make with a Will. To clarify, this information is based on Kentucky laws. Your state may be different.
Common Mistake #1: Not Having a Will
Earlier this week, David met with a family that couldn’t find their mother’s Will. If there wasn’t a Will or it cannot be found, additional steps will be required to settle the estate. This is unfortunately fairly common.
Common Mistake #2: Not Telling People Where the Will is Located
A Will is an important document. It should be safely secured, but you have to make sure someone or several people know where it’s being stored. Don’t hide the Will where it can’t be found or others would not think to look. If the Will cannot be found, it will be very difficult to ensure your wishes are followed. Without the Will, those important decisions will be made by an administrator, who will be appointed by the court. He/she may or may not know exactly how you wanted your assets to be distributed.
David explains a situation in which 3 disabled people may have lost their government benefits, had the Will not been followed.
Consider placing your Will in the file cabinet or in a desk drawer, in a sealed envelope. It will be secured, but relatively easy to find when the time comes. Don’t leave a copy with the lawyer who helped you to write the Will. There are additional steps required to get the court to approve a copy, instead of the original document. That’s assuming all heirs agree to probate the copy. It may not be the final version. There are problems if the heirs disagree as to which version is the valid one.
David describes a situation in which he advised a woman who was concerned her children would waste their inheritance due to issues involving alcoholism and drug abuse. A Will can help in this situation, but without it, the administrator might legally have to divide the estate in equal shares, without regard to the risk to the individual shares. There are ways to ensure the money is distributed to the addicted heirs, in a way that is in their best interests.
Common Mistake #3: Not Executing the Will Properly
Even though the Will is signed, if it’s signed by an heir, it’s not legally executed. This can cause significant issues. The Will itself would be considered invalid.
Have a Self-Proving Will
David recommends having your Will executed in a self-proving manner. The will should be signed by the testator (i.e. the person to whom the Will belongs) and signed by 2 witnesses, all in the presence of a Notary Public. Again, the witnesses cannot be heirs of the estate. This will make the probate process much easier.
You might consider asking friends, another attorney or even someone who doesn’t actually know the testator. The notary is going to validate that the signatures are legal and proper. It’s the process that needs to be followed to ensure your Will can be accepted by the court and probated by your executor.
Common Mistake #4: Cutting and Pasting from Something You Found Online
People often try to save attorney fees by drafting their own Wills. They may try to piece together a document with legal sounding terms they found on the Internet. More often than not, this causes more problems than anticipated.
Not only do you need to worry the Will was properly executed, the actual terminology might not even be valid. Legal terms for Wills are often state-specific.
Holographic Wills
Hand-written Wills are referred to as holographic Wills. Again, just like cobbling something together from the Internet, there can also be problems. Was the document properly executed? Can the handwriting be confirmed to be that of the decedent? Were the correct terms used? Is it enforceable? Is it a self-proving Will?
Holographic Wills can be done properly, but it’s usually better to have an attorney who understands this area of law draft the Will for you. As a former Jefferson County Probate Judge, David understands why it’s better to have a properly executed Will to avoid problems, additional legal fees and unnecessary delays.
Avoid a Will Contest, for Your Family’s Sake
When there are questions about the validity of a Will, it might lead to a Will contest. This is when an heir argues something was done improperly. Those legal battles can be long, lengthy and expensive. The result is often devastating to the family, which may never recover from the allegations and other emotional comments made during the Will contest.
Common Mistake #5: Including Items in the Will that Don’t Need to be Included
Without the help of an experienced attorney, you might be tempted to include items that don’t need to be included in your Will. If you have a Certificate of Deposit (CD), an IRA, a 401(k) or life insurance police, it usually already has a beneficiary designation. When you originally set these up, you specified who would receive the proceeds from that item, if you die. These proceeds will pass directly to the beneficiary, outside of probate, and will not be subject to any legitimate debts of the estate.
You might be tempted to include the item in your Will, but inadvertently name a different beneficiary. This will most certainly present a problem. The funds from those items will go to the designated beneficiary, regardless of whom you named as an heir in your Will. Again, this opens the door to arguments that can cause irreparable harm to your family.
Should you wish, you can name your estate as the beneficiary, however, you may need to seek advice to ensure you do this properly.
If your life situation has changed, possibly due to the birth of a child or a divorce, you need to be sure to update your beneficiary designations with the proper representative, such as the bank, your investment advisor or your life insurance carrier.
We hope this information will help you to avoid the 5 mistakes people make with a Will. David would be happy to assist you with drafting a valid Will. He can work with individuals throughout the state of Kentucky.
In future episodes, David will address topics such as a Living Trust, a Durable Power of Attorney and other documents. A Durable Power of Attorney is a good idea as you get older, especially with high rates of Alzheimer’s and dementia. This document allows a designated person to make decisions for you, while you’re living. These are documents David can draft for you in his Valley Station office or his Fern Creek office.
If a Durable Power of Attorney has not been designated, your loved one will need to go to court to have a guardian appointed. This can be a difficult experience.
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For more information about probate and estate planning issues, or to listen to The Blind Judge Podcast, visit http://www.davidholtonlawky.com/.
Check out The Blind Judge Podcast!
Retired Probate Judge David Holton actually has 2 podcasts. In addition to this one focusing on legal matters, his other podcast will focus on community issues, sports, cooking, outdoor activities, politics, history and a variety of other topics, including information about David’s guide dog Coach.
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Disclaimer: This podcast is for informational purposes only. This does not establish an attorney-client relationship. Your situation is unique. Please consult an experienced attorney to discuss your situation. This is an advertisement. Principal Office located at 5226 Bardstown Rd., Louisville, KY 40291. Office phone number: (502) 933-8600.