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Friday, May 26, 2017

A Defective Will Can Cost You and Your Family Time, Energy, and Money

We've all seen the advertisements or received the e-mails saying that estate planning is easy and can be done hassle free online.  In fact, I recently received an e-mail from Groupon offering a significantly discounted will package including a last will and testament, healthcare proxy, and durable power of attorney at a significantly reduced cost.  While the cost reduction sounds great, the laws in Massachusetts and Rhode Island do not care if you did your estate planning yourself or if you hired the best lawyer in the country to do so.  At the end of the day, your estate planning has to conform to your state's unique and non-waivable rules of law. 

Estate planning can be a difficult subject to think about.  No one likes to think about what happens when they are gone, so it is very understandable why a person may think estate planning should be like ripping off a bandage - just get it done as quick as possible.  However, I cannot place a big enough emphasis on the importance of making sure your estate planning is done correctly.

Most people know that wills in Massachusetts need to be witnessed, but not everyone realizes that those witnesses must be present in the same room as the testator at the time the testator is signing his or her will.  What's more, is the witnesses must watch the actual signing.  If one of your witnesses is playing on their smartphone while you sign your will, the will could be invalidated.

So if you have printed out your own will and signed and then had your two buddies sign later that day, you have not created a valid will in Massachusetts.

Recently, I have seen two instances of estate planning mishaps that has motivated me to write this article. 

First, I had a client whose last living parent had recently passed away come to me to discuss the probate of his parent's will.  This client brought me a copy of the will, as he was unable to locate the original will.  What is more, his loved one was aware that the original had been lost but was not concerned because there were two copies of the will in a safe deposit box.  While a copy of a will can certainly be probated it is a much longer and much more expensive process than probating an original will.  Had my Client's loved one contacted an attorney to recreate an original will, my Client would have avoided a significantly longer and more stressful probate process, not to mention increased court and legal expenses.  Simply put, the misconception that a copy of a will is as good as the original was a costly one.

Second, I had a client who has thought for the last ten years that he correctly executed his own will.  His wishes were clearly worded, the document was clean and legible, his signature was an original, and the form was signed by a notary.  Surprisingly, a will does not need to be signed by a notary.  It does, however, have to be signed by two uninterested witnesses.  Luckily for this client, he had heard from a colleague that there may be issues with the way he crafted his own will, so he consulted an attorney.  In doing so, he was given better peace of mind as he was able to properly execute his estate planning documents.

Estate planning is a difficult process, both technically and emotionally. However, it is also an extremely important and rewarding process that will ultimate give you a great comfort and peace of mind knowing that your loved ones can be spared additional time, energy, and expense in the future.

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