Over the past 18 months, many families have lost loved ones to the coronavirus. Others found themselves in ICUs, fighting to survive. This type of experience often puts things in perspective, and many people began to seriously reflect upon what will happen to their children and their loved ones in the event that they pass unexpectedly. These sentiments, as well as the fact that courtrooms and attorneys’ offices were shut down and operating remotely, led to an increase in online or do-it-yourself wills.
While it is always better to have a plan in place rather leave your future (and your assets) in the hands of the state, DIY wills are not a good idea. A will must be written correctly and unambiguously. If it is not, the will may be deemed legally invalid, and your estate will end up being divided the way Tennessee wants to divide it, a opposed to the way you wished to see it passed down.
What are some of the challenges with DIY wills?
One challenge of DIY is the possibility that the will is not legally binding. Each state has specific requirements for what makes a will legally valid. For example, in most states, there is a requirement for the person, or the testator, to be 18 years old, of sound mind, and possess two or more witnesses to sign in the presence of the testator to sign the will to make the will valid. However, in the state of Tennessee, your will must be written on hard copy, or actual paper. It cannot be distributed in audio, video, or any other type of digital file or it will not be legally valid.
Lack of specificity is also a problem with DIY wills. If your DIY will says you wish to leave your money to a specific charity, then only your money will go there; the rest of your estate will likely be subject to contestation. If you do not designate your beneficiaries, or accidentally leave one out, a will contest is almost guaranteed. If you do not name all of your assets, such as investments or collections, then they will be divided based on Tennessee’s succession laws. If there is no named executor, an administrator must be appointed, and you will have no say in who that will be.
Many people also include requests that are actually unenforceable by the laws of their state. One of the most familiar examples includes when people hear of pet owners leaving their assets to their pets. In actuality, pets cannot be included as beneficiaries to a testator’s assets; a will can name a human caretaker and make the inheritance contingent on that person caring for the pet, or place assets in trust for the pet’s wellbeing, but your dog cannot be a beneficiary.
A common request that is unenforceable is placing unsuitable demands on heirs before allowing them to receive their inheritance. For example, a testator cannot request that one of their children complete law school before obtaining their inheritance. Because there is a difference between what the testator considers unsuitable and what the courts deem unsuitable, the testator can include standards that are ultimately unenforceable without even knowing.
Another common statement found in a will is to leave the rest residue and remainder of “MY ESTATE” to someone, only to find that because you failed to include “all real estate” to be included in “MY ESTATE,” that your real estate does not pass per your will. Tennessee has a “vesting statute” that provides that all real estate passes immediately upon death to the named beneficiaries in the will. If you leave the remainder of your estate to a named beneficiary thinking this will include real estate (like land and homes), your loved ones may be surprised to learn that in fact the residuary of your estate may not include the real estate. This can be problematic for the heirs of your estate and thus a great reason and example of why you don’t want to draft your own will. There are may very tricky issues that must be considered when drafting a will and you should always seek out legal counsel to opine on the drafting of a will so that your final wishes are fulfilled.
Finally, a will may face a contest if it appears to have been created under duress. DIY wills and estate plans – especially ones where all the assets are left to a single beneficiary, without anyone knowing about it – can be contested by other potential beneficiaries. If the will is deemed invalid, and no other will exists, then the testator may be declared to have died intestate.
What happens if a DIY will is declared invalid?
If a DIY will is declared invalid, Tennessee law designates who receives the assets from the estate. then the contents of your estate will pass to your spouse, your children, or both. If you are not married and do not have children, your estate passes to the next closest relatives: parents, then siblings, then grandparents, then others. If you do not have any living relatives, the State of Tennessee may take your estate.
Will I need a probate attorney to contest a DIY will?
If your loved one created a will on his or her own and you wish to contest its contents, you should contact a Chattanooga probate litigation attorney right away. While some DIY wills may be declared invalid, others will be allowed to stand, despite the issues that exist.
Again, while it is great to establish a will, it is even more important to ensure that the will is legally valid. Issues in your will can make it difficult for your beneficiaries to receive any of your assets long after you are gone.
At Wagner & Wagner Attorneys at Law, we have seven decades of experience with the law and in the community to bring to bear on the issues faced by our clients and their families, during some of the most difficult periods of their lives. We represent clients in will contests, and our attorneys are also experienced probate administrators. To learn more about our services, please call 423-756-7923, or complete a contact form. We also offer legal services to clients in Chattanooga, Cleveland, and all surrounding areas.