By Marlaine C. Teahan
© Fraser Trebilcock
Lowe’s and Home Depot have made DIY (Do It Yourself) projects a household name. Easy directions, helpful advice, and available materials make building a shed, planting a garden, or fixing the plumbing within reach of the average lay person. Of course, we never hear of DIY brain surgery or DIY root canals. Why then do many folks think DIY estate planning is a good idea?
A recent Florida Supreme Court case illustrates that DIY estate planning doesn't always work out so well. In the case Aldrich v. Basile, 2014 WL 1250073, the testator prepared a will using an "E-Z Legal Form" that gave a list of specific gifts to her sister and then to her brother, if her sister died first. This will did not include what is commonly referred to as a "residue clause" that gives a gift of everything else (the residue), besides those things specifically gifted. After the sister's death, the testator received other assets from her sister and died with assets in addition to those she specifically gave in her E-Z will. Without a residue clause, it was not clear who should get those assets; should they go to the brother or pass by the law of intestacy that dictates who inherits assets not given in a will? The brother listed in the will argued that he should get everything; however, there was another brother who died earlier leaving two nieces to the decedent. The nieces were successful in arguing that the law of intestacy should apply since there was no residue clause; they received half of the assets that were not specifically gifted. Even though the Justices thought the testator's intent was clear and that she intended her surviving brother to receive her entire estate, they still ruled against enforcing her intent since the form did not make a gift of the residue.
In a concurring opinion, Justice Pariente pointed out that there was no space on the E-Z will form for a residue clause. It wasn't that the testator forgot to fill that part out; evidently, the form's publisher omitted that important part of the will. The Justice invoked the old adage of "penny-wise and pound-foolish" and ended her opinion with the following quote that should be carefully considered by all who contemplate the best method of conducting estate planning:
"I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees [spent interpreting the will]—the precise results the testator sought to avoid in the first place."
Many attorneys actively educate clients and the general public against DIY estate planning; others, however, view such DIY estate plans as job security. When a person drafts his or her own estate planning documents, or relies on pre-printed forms, the money saved on the front end is often spent ten times over on the back end. Expensive fixes of badly drafted DIY wills and trusts are best avoided by using experienced trusts and estates attorneys at the outset.
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For more information, contact Marlaine Teahan at Fraser Trebilcock, 124 West Allegan Street, Ste. 1000, Lansing MI, 48933, (517) 377-0869, or e-mail her at mteahan@fraserlawfirm.com.
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