Begos & Horgan LLP
From The Firm — Press Release
BRONXVILLE, NY, May 26, 2009 — If you decide to prepare your own last will, there are at least 74.4 million pieces of advice you can call upon. That is how many hits this term generates on Google. But, the big question is, are those 74+ million hits going to get you a will that does what you want and holds up in court?
"Probably not", says Estate Planning Attorney Michael F. Horgan. "I've been practicing for almost 20 years and just recently ran into my first "do-it-yourself will". It's taking hours of extra work, resulting in rather significant expense to the deceased's estate to make that last will do what the person intended," says the Bronxville-based attorney who is a founding member of the law firm of Begos Horgan & Brown LLP and head of its Estate Planning and Probate Practice Group.
"In this case, the woman wrote her own will, which was witnessed by two co-workers. Because the will did not contain what is called a "self-proving" affidavit, we have to track down the witnesses to request that they execute these affidavits, which detail the circumstances surrounding the execution of her will. This means the estate will have to incur expense to locate these two people. Then, we have to hope that they cooperate with any court requests. In addition, since the will was not signed under the supervision of an attorney, the court may not even accept it as being a valid last will. Ultimately, the lure of the initial savings of a "do-it-yourself will" has, in this case and many others like it, resulted in a complicated, time-consuming costly legal venture that could have been avoided if the will were prepared by an estate planning attorney, for what is usually a nominal fee. Perhaps what is most tragic is that like many other "do-it-yourselfers" this deceased person's wishes may never be carried out as she hoped when she wrote the will."
Attorney Horgan says this is just one example of how a "do-it-yourself will" can backfire. Often, it is because these documents originate from vaguely written books or websites. "The biggest problem I see with using "do-it-yourself will" books is that they are usually written with a very broad brush, since the publishers are marketing them to an audience living throughout the United States and these references are not, therefore, state-specific. The probate process (the mechanism by which a will is proven to be valid) can and does vary from state to state," he says. "A website or book (and, by the way, Amazon lists 82,000 such books on "do-it-yourself wills") can never substitute for the candid discussion a client can have with his or her lawyer regarding a well-conceived estate plan. For example, perhaps a client wishes to disinherit a spouse and pens a will reflecting such disinheritance. From the time he executes the will to the day he dies, the client may never realize that certain states do not allow for full disinheritance of a spouse. New York, for instance, provides that a disinherited spouse can claim one-third of the estate of a deceased spouse."
The worst thing that can happen if someone prepares his or her own will is that the probate court could decide that what is offered as the person's last will is anything but. "Courts have the power to declare wills invalid for a number of reasons," says Attorney Horgan. "For example, if the court should rule that the person was incompetent at the time they wrote the will or that a third party unduly influenced them, then that will could be declared invalid. If someone really wants their wishes carried out, they would be very well served by retaining an estate planning attorney to ensure those wishes are indeed respected," says Attorney Horgan. "If they think they will be saving money by doing it themselves, they may end up with a document that does not adequately express their wishes. Or, the court may rule that those wishes were unclear because of the way the will is written. In that case, you may end up with someone from the probate court trying to determine exactly what you intended for an estate plan. If there are ambiguities in the will, a judge may be the one who decides how your estate is divided."
The economic downturn has people scrambling to save money any way possible. But Attorney Horgan cautions this is one place where that may not be a good idea. "The fees charged for preparation of a simple will are generally very modest. They pale in comparison to the legal and court fees necessitated by a will that becomes the subject of a construction proceeding in court."
About Begos Horgan & Brown LLP
Begos Horgan & Brown LLP is a full-service law firm representing businesses and individuals. They engage in sophisticated business, financial and insurance related litigation, trials and appeals in all courts, state and federal, in New York and Connecticut as well as arbitrations. Their practice areas include general commercial and corporate disputes, securities litigation, debtor/creditor disputes, insurance coverage disputes, real estate litigation, employment-related litigation, real estate purchase and sales, trust and estates and divorce. They have offices in Westport, CT and Bronxville, NY. For more information click through our website.
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(860) 653-2712 (H) aobston@aomc.com
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