Sponsored - In this month’s Ask the Expert, Attorney Lisa Hostetler Brown, founder of LawyerLisa, and certified specialist in elder law, shares insights to help us and our loved ones navigate the elder law and long-term care maze.
Concern: My mom got her Will on the Internet. Is she really protected?
Expert advice: There is a long list of things that can go wrong with online Wills. Most of the time, you simply don’t know what you don’t know.
You only know for sure whether your estate planning is any good until after you die. So, you may have a will which you created online that appears to be just fine. The problems start once you die. Litigation is the only solution to the problems. As almost everyone knows, litigation is time consuming, stressful, and expensive.
When Mom dies and her online Will is submitted to the probate court, the first thing that the court and would-be beneficiaries will consider is whether the Will is valid. A will that was created online will likely be scrutinized, especially by people who would prefer that the Will be declared invalid. Even to the court, these online wills tend to look suspicious.
Mom’s online Will might not have been executed correctly. If the Will wasn’t signed by the right number of witnesses and a notary, then the Will probably isn’t valid in the first place. If the Will was signed by the wrong people, then the Will probably isn’t valid. The only way to know for sure whether an online will is valid is to litigate the issue before the probate court.
Once there are questions about the validity of the Will, all the things that people can possibly fight about in a Will contest situation are in play: duress, undue influence, lack of capacity, and potentially the unauthorized practice of law.
Choosing the right witness is a big deal. The witnesses to the Will are the people who will be called on to testify about whether Mom was somehow forced to sign the Will or whether Mom had legal capacity to sign the Will. Commonly, folks have employees at a bank or another business witness and notarize wills. Most people don’t consider having to track down these witnesses to testify about the validity of a will 20 years later.
Even if you can track down these witnesses, they may turn out to be bad witnesses. When an attorney drafts and witnesses a will, the attorney will be able to testify as to the validity of that will. Attorneys who draft wills, and especially Elder Law attorneys who routinely work with aging people, evaluate people every day about their capacity. The random person working at the bank has probably never evaluated anyone’s legal capacity to make a will. Elder Law attorneys also have processes and procedures in place to address whether the person who signed the Will was forced to sign the Will. There is no stronger witness than an Elder Law Attorney.
Mom’s online Will might not actually dispose of all her property. If the Will is missing a residuary clause, then the Will probably doesn’t name a beneficiary for all Mom’s assets. The only way to get an answer on who should get the remaining property, without an agreement among all the people listed in the Will and the people who would get Mom’s stuff if she died without a will, is to litigate the question in probate court.
Working with the right attorney makes a big difference. A man with several life insurance policies totaling around $1 million brought me his Will, which had been prepared by a general practice attorney. The Will left the $1 million life insurance payouts to ten people, each of whom would get $100,000. I dug a little deeper and discovered that each life insurance policy had a beneficiary—and the beneficiaries named on the life insurance policies were not the people named in the Will. This man’s bequests were doomed to fail. This rookie mistake made by an untrained, unspecialized document drafter would have caused no end of trouble for those left behind.
My advice? Don’t get your Will on the internet. Get it from an elder law attorney. Your family will thank you after you’re gone.
To submit your Elder Law Concern to Ask the Expert, please email your Concern to Melissa@LawyerLisa.com. All Concerns are subject to re-writing by the Expert and all Expert Advice is general in nature. For legal advice regarding your situation and to have your specific questions answered, please contact LawyerLisa, LLC at info@LawyerLisa.com to schedule a consultation. For additional information, please visit https://www.LawyerLisa.com/lcp Lisa Hostetler Brown is a Certified Elder Law Attorney, certified by the National Elder Law Foundation, ABA accredited.