Thinking of creating your own estate plan? You may want to think again. In Massachusetts, there are dozens of cases where a Will or Trust has been challenged because an error was made in the signing or the drafting of the actual document. Most mistakes are because the now deceased person never consulted a lawyer.
Potential mistakes made in a do-it-yourself estate plan have the potential to cost your heirs much more than you might have saved yourself in legal fees. If there is a chance that someone may challenge the will or trust, you do not want to make it easier for them to succeed because of a mistake that could have been avoided.
Even simple estates are ripe with “oddball” things that can go wrong. Especially with wills and trusts, there are many details that a layperson simply wouldn’t think of. A recent article in Forbes chronicles one story of a layperson who ran into trouble after making a simple clerical error in creating his do-it-yourself living trust.
The man used a pre-made form to set up a living trust in 1984. When he deeded his house to the trust, however, he dated it 1983 (one year before the trust was created). In 2009 the mortgage on the house was fully paid off and the man, now 75 years old, wanted to borrow against it. Due to the mistake he made 25 years earlier, the bank wouldn’t provide a loan because the man didn’t have a clear chain of title to his home.
Two weeks and $2,000 in legal fees later, the man was able to take out a loan against his house. Had he hired a law firm to draw up the original trust in 1984 it would have been much less stressful and only cost him about half the amount he eventually paid in legal fees.
Farrell v. McDonnell, 81 Mass.App.Ct. 725 (2011) (Will execution was proper despite the fact testatrix did not verbally acknowledge her signature in the presence of witnesses).
Flynn v. Prindeville, 327 Mass. 266 (1951) (Will execution was not proper because testatrix did not acknowledge her signature or identify document as her Will in the presence of witnesses).
The battle centers around two hand-written notes presented by the artist’s girlfriend – Amy Pinto-Walsh – that appear to give her Mr. Kinkade’s house and $10,000,000. Mr. Kinkade’s estranged wife, and the mother of his four children, disputes the validity of both notes. Ms. Pinto-Walsh was not included in any of Mr. Kinkade’s other estate planning documents.