Planning for Life

If You Have No Children, Hire a Lawyer for Your Estate Planning

Posted by Harry S. Margolis on August 25, 2014

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In my blog post last week I provided a checklist for determing whether you need a lawyer for your estate planning, hoping to help readers determine whether they have a "plain vanilla" situation and goals or whether their circumstances and wishes require attorney help.

A case I had years ago and a similar case recently decided by the Florida Supreme Court both demonstrate the risks involved in using off-the-shelf forms, especially when the individual does not have children.

In my case, I was engaged by the nephew of a man who had recently passed away. The man had no children and the nephew was the only relative living in the Boston area. He had looked through the man's papers in his apartment and did not find a will or trust. He did learn that the man had a safe deposit box and we obtained a court order permitting the bank to drill the lock so we could open the box.

In the box, we found several copies of a store-bought trust form in which the decedent gave his entire estate to his niece, my client's sister. However, in order for the trust to work the decedent had to either retitle his assets in the name of the trust or execute a will directing his estate to the trust -- often referred to as a "pour over" will since it pours the estate over into the trust.

In this case, the uncle had not taken either step. As a result, his estate passed to his heirs under the rules of intestacy, which is the state statute saying how probate property will pass in the absence of a will. In this case, it meant that the uncle's estate went one quarter each to my client and his sister and half to another niece who lived out in Oregon, certainly not the uncle's intent.

In the Florida case, Aldrich v. Basile, Ann Aldrich created a will using an E-Z Legal Form listing all of her property and directing that it go to her sister and, if her sister predeceased her, then to her brother. Her sister did die first and gave her entire estate to Ms. Aldrich. Ms. Aldrich kept the inherited property in a separate account and executed another document as an amendment or "codicil" to her will saying that she wanted all of her estate to go to her brother, but had it signed by only a single witness.

After Ms. Aldrich passed away, two nieces came forward saying that they were entitled to a share of Ms. Aldrich's "after acquired" property that was not listed in her will. The trial court ruled against them reasoning that Ms. Aldrich's intent that all of the property go to her brother was very clear. However, on appeal first to Florida's Court of Appeal and then to its Supreme Court, the nieces won their claim.

The reason they won is that Ms. Aldrich's will did not contain a residuary clause. While it effectively passed all of the listed property to her brother, it said nothing about the property that she received from her sister and which she kept in a separate account. Most wills have what is called a "residuary" clause directing the distribution of everything not specifically listed. Absent such a clause, Ms. Aldrich died intestate with respect to those accounts, and a portion of them must pass to the nieces under Florida's intestacy statute, clearly not what she had intended.

The codicil that may have corrected this gap in Ms. Aldrich's will was declared invalid because it was missing a signature.

So, what's the moral of these stories? One may be that everyone should always use an attorney. Another may be not to use store-bought forms and that sites like LegalZoom and Nolo do a better job. A third may be that we should add being childless to my checklist in my prior blog of circumstances in which it's important to consult with an estate planning attorney.

Margolis & Bloom, LLP, practices estate, long-term care and special needs planning in Boston, Dedham, Framingham and Woburn with a strong commitment to client service.  If you have questions about these or other legal matters, do not hesitate to contact us by e-mail by clicking here or by calling us at 617.267.9700.

Topics: Estate Planning

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