Estate Planning is essential for many reasons, which are set forth in prior articles. Links to these articles are set forth at the end of this article. This series will focus on how an Estate Plan could be challenged. This series will show the importance of doing Estate Planning in the right way. This article will focus on the formalities of an Estate Plan.
Different documents in an Estate Plan have different requirements and those requirements vary from state to state. Typically, for any document, the person must have legal capacity, such as being 18 years of age. However, in most states, an emancipated minor would have legal capacity to make a Will or enter a contract despite being under age 18.
A Will must be in writing, though a few states allow oral (or “nuncupative”) Wills at least under certain circumstances. Next, typically, a Will must be signed by the “testator,” the maker of the Will. However, the signature could be done for them by someone else at their direction (like for a paralyzed person). Typically, the testator’s signature must be witnessed by at least two people (some states require three).
However, some states don’t require witnesses for a “holographic” Will (a Will written entirely in the handwriting of the testator). Required witnesses must be of legal age and sound mind.
In some states these witnesses cannot be related to the testator or cannot be beneficiaries under the Will or their share would be limited to the share they would’ve received if the testator had no Will. The witnesses must watch the testator sign in the presence of the testator and the presence of each other.
In the vast majority of states, a trust need not be executed with testamentary formalities. In other words, it does not need to be signed in the same manner as a Will. That’s not the case in Florida, for example.
Both a Will and a trust typically are notarized. The notarization makes the Will “self-proving” in many states. In other words, if the Will is notarized, the witnesses don’t need to be tracked down to verify it’s their signature.
Confused? There are countless ways the “execution” process could go wrong. Someone could forget to sign a document, which happens with startling frequency. They could do it in the wrong order or while one of the witnesses is out of the room. Even what seems like a trivial error could be a fatal flaw to the plan. This is why it’s essential to seek the assistance of an experienced Estate Planning attorney who focuses their practice in Estate Planning.
For example, Bobby decides to leave all his assets to his girlfriend and finds a Will on the internet which he decides meets his needs. He goes to his bank and asks them to notarize his signature, which they do in the supervisor’s office. He next asks for two witnesses and he gets two bank tellers to witness the document. Unfortunately, the witnesses didn’t see Bobby sign and Bobby’s Will is invalid. Bobby would have corrected the mistake if he’d known of it.
However, these problems generally don’t arise until after death when they can’t be fixed. Bobby’s property would pass pursuant to the laws of intestacy in his state. If he doesn’t have children, his family of origin would inherit and his girlfriend would get nothing.
An experienced Estate Planning attorney would have known the witnesses must have been in Bobby’s presence and each other’s presence for the Will to have been valid. Bobby was penny wise and pound foolish. Though Bobby saved a little by not having to pay an attorney, his wishes won’t get carried out because his Will is invalid.
There are many ways an Estate Plan could be invalid and not carried out. By consulting an experienced Estate Planning attorney who focuses their practice in the area, you can minimize the risk of your Estate Plan being invalid.
Reasons to do Estate Planning articles:
Stephen C. Hartnett, J.D., LL.M.
Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128