Thursday, May 10, 2012

Repost from Ann Shaw, having a attorney is still a good idea

The Store Bought Will Or, How to Save Now and Pay Later

By Ann Shaw, Attorney at Law
I recently received a request from an out of state client to handle his deceased uncle’s estate. Uncle had passed away in a nursing home in St. Pete, and the estate qualified for "Summary Administration" under Florida law.
The nephew sent me his uncle’s will for filing in the Probate Court. The will certainly looked official, with "Last Will and Testament" printed in large letters on top, and with the Uncle’s signature and three witness signatures, all notarized, at the bottom. The will was not prepared by an attorney, however, and that caused unnecessary expense in the end.
The problem was, the will was not "self proving." A "self proving" will is properly acknowledged by the testator and witnesses before an officer authorized to administer oaths (usually a notary public). A self-proving will may be admitted to probate without testimony of the attesting witnesses. Although a notary signed and stamped the will signatures, the required language acknowledging that the testator had declared that he was signing his will, and that the witnesses signed in the testator’s presence, was missing.
When a will is not self-proving, testimony from a witness to the will is required. That meant that I had to hunt down one of the witnesses and bring them before a circuit court judge, or court-appointed commissioner, or clerk or deputy clerk of the circuit court. The expense involved in doing this more than offset the "bargain" that Uncle got by having a non-attorney (of course the preparer didn’t sign their name) prepare his will, and added to the time required to probate the estate. Fortunately, the witnesses were still in the area. If none of the witnesses were available, further procedures would have been required.
The moral of the story is, have your estate plan prepared by an attorney. Saving a few dollars now may mean that your heirs have to spend many more dollars later.