The Art of Estate Planning and Dremel® Tools

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Recently, I purchased a Dremel tool for work I was doing at my home. You may be familiar with these small hand held tools that offer a variety of bit heads to do anything from drilling to sanding to cutting pipe. I noticed on the handle that there was a warning label: "Do not use for dental work."

I have to admit that my first reaction was that the warning label was just inane. It was akin to the "Caution - Coffee is Hot" on a MacDonald's cup lid. I mean, after all, who does their own dental work?

Then I started to think about some of the probate matters that have crossed my desk over the past three decades. While people may not do their own dental work, they often try to do their own legal work.

What I am referring to are the people that think that they don't need a lawyer to draft their estate plans using forms off from the internet or to those who try to make changes to their documents by themselves. Often, these documents and changes cause significant legal problems and costs thousands of dollars in legal fees to their heirs.

Let me give you some examples of things that I have seen in recent years.

I received a call from a client explaining that her Uncle Clifford had recently died, and left a handwritten note directing that the personal representative of his estate under his Last Will and Testament leave $5,000 to each of his nephews, my client’s children. The letter was signed by the uncle, but it was not dated, witnessed or notarized.

The personal representative of the estate (who was also the primary beneficiary) would not honor the gift. When I asked the client why her uncle didn’t go to his lawyer to prepare a codicil (amendment) to his will, she answered that Uncle Clifford hated lawyers, and didn’t want to pay to have the document drafted.

Florida law does not recognize holographic (handwritten) documents. Florida has very specific requirements for how a Last Will and Testament or codicil has to be signed and witnessed. Because Uncle Clifford didn’t properly execute this document to be a codicil to his will, this gift to his nephews failed. While it was clearly his intention, the personal representative was within his rights in not making this gift.

One issue that I have seen often is when a person tries to make changes on the face of their Last Will and Testament. Rather than executing a codicil or a new will, they will cross off a gift or try to change the nomination of their personal representative.

Under Florida case law, these changes may void the entire will. Courts have ruled that such handwritten changes can act as a revocation of the entire instrument. As such, a simple handwritten change on the original document could change the entire distribution of an estate from the direction contained in the will to a determination that the decedent died intestate, or without a will. Assets would then be distributed in accordance with the descent and distribution rules of the Florida Probate Code to the decedent’s heirs at law rather than to named beneficiaries.

There is a common sense reason for this. Assume grandma leaves a $5,000 gift in her will to her grandson, Johnny. Johnny finds the will, crosses off $5,000 and inserts $50,000. Just for good measure, he writes grandma’s initial in the margin. Florida courts have seen enough of this to simply find that the entire will is void.

Finally, a word about the internet.

A client came to me this year with a Will that she had drafted using an internet service. She was very proud of her work, and the money that she had saved. When I reviewed the will for her, however, I noted that she had named herself as the sole beneficiary of the Will. I pointed out that this would have to be an error. “Oh no,” she said, “of course I want to be the beneficiary of my estate.”

I had to remind her that her death was the triggering event of her will, and that she likely should have named her children as beneficiaries. By naming herself, she effectively negated the effectiveness of the entire document.

Her face fell, as she realized that her internet venture had not gone so well.

Much of the time, professional fees to change a Will or a Trust cost only a few hundred to a few thousand dollars. Fees spent to enforce a handwritten change, however, can cost tens of thousands of dollars, and may or may not result in success. Worse yet, an improperly drafted or executed durable power of attorney can result in a court appointed guardianship.

When you engage an attorney to draft your estate planning documents, you are hiring more than a scrivener for your documents. You are retaining him to assure that your documents are executed in accordance with Florida laws, and that they will be admitted to the Florida probate court without the need for a formal hearing, and that the administration of your estate will be in accordance with your wishes.

While no attorney can assure you that there won’t be a probate contest at your death, properly drafted and executed documents assure you that there won’t be issues regarding technical errors that can destroy your final desires.

I often tell clients that attorneys are like the Fram Man. You can pay us now, or you can pay us later. The difference is that proper planning with the advice of an expert will save your beneficiaries much of the time, money and frustration of a probate contest.