Posts Tagged ‘Will’

Online legal services — buyer beware!

Wednesday, July 30th, 2014

Anyone who does a little online research about making a will inevitably arrives at one or more websites that advertise “do-it-yourself” wills. These websites sell a form for just a fraction of the cost of hiring an attorney to make a will for you. When you think you know who you want to leave all of your stuff to when you die, it’s easy to think that the will you buy online is all you need.

However, a recent case from Florida reveals the limits of online legal forms and how they are no replacement for assistance from a well-trained attorney. In 2004 Ann Aldrich created her will using a product called “E-Z Legal Form.” In the will, she left her house, car, retirement account, bank account, and life insurance account to her sister. The will also stated that if Ann’s sister predeceased Ann, then Ann’s brother was to inherit all of the listed property. Ann’s sister did die before her, and left Ann real estate and cash. Unfortunately, the will didn’t say who was to inherit any of Ann’s property that she acquired after she made the will in 2004.

Furthermore, as often happens with problems in wills and other estate planning documents, the problem wasn’t discovered until it was too late. When Ann died in 2009, there was a dispute about who would inherit the property Ann inherited from her deceased sister. Ann’s brother argued that Ann’s intent was for him to inherit everything – after all, he was the only one named in the will after the predeceased sister. But Ann’s nieces believed that because Ann listed the specific property for the brother to inherit, any property not specifically listed in the will should not be distributed through the will.

Although Ann left a note with her will that seemed to indicate her desire to leave “all of her worldly possessions” to her brother, the Florida courts determined that the note was not a valid codicil to Ann’s will. Therefore, because Ann’s will mentioned specific items of property and did not mentioned all of her property, then the property she acquired after 2004 passed by intestacy. Even though Ann did not provide any bequest to her nieces her will, under Florida intestacy law, they received a portion of Ann’s estate.

One of the justices of the Florida Supreme Court noted “that although this is the correct result under Florida’s probate law, this result does not effectuate Ms. Aldrich’s true intent.”

If Ann Aldrich’s will was contested in Virginia, it is likely that a Virginia court would reach the same result, since the laws regarding interpretation of wills in Florida are similar to the laws in Virginia.

What is troubling is that Ann could have saved all of this trouble by getting the advice of a competent attorney! Not only did Ann’s property go to people she didn’t intend to receive it, but it took nearly five years of litigation between family members that ultimately ended up in the state Supreme Court. As the court noted, Ann Aldrich’s estate serves as “a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees—the precise results the testator sought to avoid in the first place.”

Kristina Beavers, Attorney at Law is a full-service law firm that helps clients create the estate plan they need to fulfill their wishes. A good estate planning attorney does more than just draft documents – she will meet with clients before and after creating their documents to make sure their documents will fulfill their intent, protect them, their beneficiaries, and their assets. A good estate planning attorney knows that no estate plan is “one size fits all” and knows just how to tailor the plan to every client’s needs.

If you have questions about your own estate plan, if you are concerned that a loved one’s do-it-yourself estate plan is not valid or inadequate for their needs, contact Kristina Beavers, Attorney at Law.

Does Mom (or Dad) seem to be slowing down?

Thursday, December 26th, 2013

I love holidays! I love the lights and the colors and the smells and the gathering of family and friends. I look forward to each year with anticipation and excitement.

But holidays are also a way of keeping track of the passing years. It seems like just yesterday I was sneaking down the stairs to see what Santa had delivered. However, it’s been a lot of years since I was good at sneaking anywhere!

Sometimes it is easier to tell when a parent is losing his or her edge when we only see them on the holiday. When we talk on the phone, we don’t see the extra time it takes for them to get out of a chair. And perhaps we have never noticed before that there are times when they go into a room and seem to forget why they went there.

Now might be a good time to talk with your parent about making sure they have all of their estate planning documents in place and current.

Most people are confident that they need a Will to distribute their ‘stuff’ after their death, but what about the other documents that will help them as they get older?

A General Durable Power of Attorney is one very valuable document that must be signed while the person has the cognitive ability to do so. A Medical Directive (also known as a ‘living will’) is another.

These documents can go a long way to improve the quality of life of our parents (or ourselves). They also make it easier for those family members that will need to help the elders in our lives.

And at this time of year, when we are all thinking about gifts, perhaps we should consider the gift of peace of mind….for ourselves and for our families.

We would love to meet with you and discuss the various parts of an estate plan and how we can help you achieve a little more peace of mind. Please consider calling us at 757-234-4650 to schedule an estate planning consultation.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

I have my dead mom’s Power Of Attorney, can I sell her house?

Saturday, November 9th, 2013

I have had a few questions lately from people who say they have a Power Of Attorney for their parent and the parent recently died. Usually, they want to know if they can use that Power Of Attorney to sell their parent’s house.

A Power Of Attorney allows the agent to do anything that the principal can do. In the situation above, the child was named as the agent and the parent was the principal.

If we think about it logically, a principal can’t do anything after they have died, and that is exactly what happens with the Power Of Attorney. It dies with the principal.

The next question is ‘what happens to the house?’ That would depend.

If the house was deeded with some sort of survivorship option, then the house would belong to the survivor automatically and would not be considered as part of the deceased’s estate.

If there was a Will, the Will would describe what would happen to assets in the deceased’s estate, including the house if that was part of the estate.

If there was not a Will, the statutes covering intestate (without a Will) division of property would control. In Virginia, the house would then go to the legal heirs of the decedent.

The Virginia probate process is relatively easy in comparison to some other states. You can contact the Clerk of the Circuit Court in the jurisdiction (city or county) where the deceased lived and the probate clerk can often be of great assistance. Or, you can contact a probate attorney to help with the situation.

But remember that after the person dies, the Power Of Attorney terminates automatically and is no longer effective at all. Having a complete Estate Plan can help eliminate this problem situation.

If you have any questions about this or any other legal matter, please contact the office at 757-234-4650 to schedule a consultation.

Last Will and Testament

Tuesday, July 9th, 2013

Historically, a “Will” was used to distribute real estate after someone died and a “Testament” was used to dispose of personal property. Today those instructions are combined into a single document, called a “Last Will and Testament.”

To learn more about estate planning, or if you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

And check out our new Estate Planning Trivia page!

Do I get the inheritance that was promised to me?

Friday, April 12th, 2013

A woman (let’s call her Sue) called my office this week and explained that she had been a caregiver for an elderly lady (lets call her Sadie) and Sadie had promised to give Sue her car when Sadie passed away. Sadie did indeed pass away recently and Sue found out that Sadie had a Will but there was no mention of Sue in the Will at all. Sue wanted to know if she could enforce the oral agreement that she would get the car.

Unfortunately for Sue, the short answer was ‘no’.

Sadie could have added the gift of the car to her Will at any time before her death. Instead her Will had not been changed in a number of years and all of her estate was to be divided equally between her children.

Sue explained that the children never came to see Sadie while she was alive, and they never visited her in the hospital or nursing home. Sue had worked for Sadie for a number of years and she was the only on-going companion and friend in the last few years of Sadie’s life.

Of course, this is only one side of the story and I have no way of knowing if it is true or not. It doesn’t really matter because the estate will be distributed according to the terms of the Will and Sue will not receive the car (or anything else).

There is a moral to this story. Everyone should review their estate planning documents, including the Will, at least every few years just to make sure that you don’t want to make any changes.

If Sadie had done this review, she could have easily left her car to Sue as she wanted. As it stands now, Sadie’s friend Sue is left with nothing.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.