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Legal Law

Use an attorney for your will and estate planning!

Estate planning, writing a will, passing on property when you die – these can be a minefield of unintended consequences, especially if you don’t see an attorney. In this article, let’s explore some examples of the many things that can go wrong.

A common mistake is to put the property in joint names with an adult child so that it automatically passes to the child when you die and “saves” your attorney’s fees. This idea has many pitfalls. If the child dies before you, go back to where you started. It might not be a problem if you have time to fix that, but what if you are in an accident together and never have a chance to change things? Or what if you never get to do it? Now your heirs will have to probate your estate, which will cost them far more than it would have cost you to see an estate planning attorney.

Creditors are also a consideration. Did you know that your child’s creditors could use your property to collect the child’s debts? If your child is on the title, the child is the owner. Creditors can link real estate to collect a judgment. They can garnish bank accounts. When that happens, it is up to you to try to undo it. Proving that something is really yours, recovering funds, freeing a frozen bank account or removing a link can be very difficult and does not always work. It typically requires the help of an attorney, which costs more than what you would have spent on an estate planning attorney.

Another popular idea is to leave everything in the hands of an adult child because that child “knows what you want to do with him” and will distribute things when you die. This can take many forms, including a joint title, naming only one child in a self-made will, or simply telling that child what you want without discussing it with anyone else or taking formal action. What could go wrong? Much! On the one hand, as in the previous example, the child could die before you or at the same time as you. You are also putting your child in a difficult position if there is any disagreement between your children. You may not think that your little darlings would behave that way, but money and pain do strange things to people: tempers rage, siblings don’t get along, and sometimes the boy who was supposed to had to divide the property decides to keep everything. Stories of fights between children abound, ultimately costing expensive legal fees and leaving broken relationships behind. Even if you are sure that this will not happen to you (the famous last words), consider the other extreme: will your child feel so guilty or modest that he will give everything to the siblings and keep nothing?

Writing your own will or trust can also spell trouble. If you do not follow the required formalities, the document will not be valid. If there is anything ambiguous in what you wrote, a court will decide what you meant. That’s expensive and like rolling a dice. If you think it’s easy to be clear, think again. Take the case of the man whose will ordered his daughter to receive a large monetary gift if she survived him for 30 days, and his second wife to receive everything else. The daughter died on the 28th. Who gets their share? The will said that the wife gets all “the rest.” Will didn’t say what to do if the daughter didn’t survive. Does the second wife receive it or does it go to the children of the man from her previous marriage? Where do you think those kids think I should go? A court will probably have to get involved and this will cost a lot more than having a lawyer write the will.

You should not try to be your own attorney any more than you would your own dentist or surgeon. As the saying goes, “you get what you pay for”. If you think do-it-yourself estate planning software is the answer, you should read the review by Consumer Reports.


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