Should you Hire an Attorney to Write Your Will?
As practicing probate attorneys (lawyers who take a will to court to have the
property distributed according to the will) members of our section see many wills that
were not written by an attorney and which create tremendous problems. In fairness, we
also see wills that were written by non-attorneys that worked perfectly well. But given the
small cost of having an attorney write a will versus the large cost of a probate battle we
suggest that paying an attorney to write your will is worthwhile. To illustrate this point we
are collecting and posting on this website examples of problem wills that were not written
by attorneys.
Example of an Awful Do It Yourself Will
By Jonathan C. Reed
1
Here, with only the names and account numbers changed is a will I was recently
hired to probate. It starts with a pre-printed form. I have used regular type for the form and
script type for the part filled in by hand. As you read it can you pick out the problems which
I will point out at the end.
LAST WILL AND TESTAMENT
I,
PERSON A
, a resident of the state of
Nevada
, County of
Clark
being of sound
disposing mind, memory and understanding, do hereby make, publish and declare this to be my
Last Will and Testament, hereby revoking all will and codicils at any time heretofore made by
me. My social security number is:
123-45-6789
.
ITEM I
I revoke all will and codicils that I have previously made.
ITEM II
I give, devise, and bequeath the following real and personal property:
1.
2005 Chevy Malibu, Vin____
2.
2010 Ford F-150, Vin___
3.
ABC Bank Acct. No. ___23
4.
ABC Bank Acct. No. ____29
1
Reed & Mansfield, 6655 W. Sahara Ave. B-200, Las Vegas, NV 89146, www.probatenevada.net
To:
1.
2005 Chevy Malibu, Vin____ to Person B
2.
2010 Ford F-150, Vin___to Person C
3.
ABC Bank Acct. No. ___23 to Person D
4.
ABC Bank Acct. No. ____29 to Person E
In equal shares, or should any of them predecease me to their issue per stirpes.
However, in the event that the above person or persons predecease me, I give that
same money or personal property to:
Person F
ITEM III
I direct all my just debts and funeral expenses to be paid as soon as possible after my
death.
ITEM IV
I name
Person F
as personal representative (Executor/trix) of this will without bond. If
this person or institution shall for any reason fail to qualify or cease to act as personal
representative, I then name
Person F
as personal representative, again without bond,
instead.
ITEM V
I hereby empower my Executor/trix to sell property, real or personal, for cash or on
time, without an order of the Court at such time and upon such terms and conditions as shall
seem best.
I
Person A
, the Testator/trix, sign my name to this Will, consisting of
1
pages, this
6
day of
August
, 20
09
.
Being duly sworn, I declare to the undersigned authority that I sign this document as my
Last Will, that I sign it willingly, and that I execute it as my free and voluntary act for that
purposes therein expressed.
I declare that I am of the age and majority or otherwise legally empowered to make a
Will, and under no constraint or undue influence.
STATE OF
NEVADA
)
) ss.
COUNTY OF
CLARK
)
On the
6
day of
August
, 20
09
there and then personally appeared ___________ and
_________ who being duly sworn, depose and say: that they witnessed the execution of the
within Last Will and Testament of the within named Testator/trix__________; that said
Testator/trix subscribed said Last Will and Testament and declared the same to be his/her Last
Will and Testament in their presence, and that they thereafter subscribed the same as
witnesses in the presence of said Testator/trix, and in the presence of each other, and at the
request of said Testator/trix; that said Testator/trix at the time of the execution of said Last Will
and Testament appeared to them to be of full age, of sound mind and memory.
Person G
residing at
123 Oak St., Las Vegas, NV
Person H
residing at
123 Maple St., Las Vegas, NV
SUBSCRIBED AND SWORN to before me this
4
th
day of
August
, 20
09
.
Person J
Notary Public for said county and state [Person J’s notary stamp is here]
Here are the first two problems that immediately jumped out:
First, most of the property of the person who wrote this will was not mentioned in
the will. Who gets that property? Typically a will might list particular items to go to
particular people and then the will says how everything else shall be divided. This will does
not. At best, this will only disposes of the two vehicles and the two bank accounts. The
remaining property goes to various relative according to the Nevada statutes that describe
which relatives inherit if there is no will.
Second, did you notice that the will writer (the Testator) dated his will as August 6,
2009. The sloppy public notary first filled in August 6, 2009 on his notarization form, did
not fill in the names of the witnesses, and then dated his notarization as August 4, 2009.
With the notarization questionable the stage was now set for a battle between the
persons named in the will and the relatives who would inherit under state law if the will
were deemed invalid. In addition, the two bank accounts contained very unequal amounts
of money and the person getting the smaller account focused on the language that the four
persons named in the will were to get equal shares. Of course, the person getting the larger
bank account focused on the specific gift.
Fortunately, none of the people named in the will died before the Testator. If one of
them had, this will in one part of Item II says that the portion of the predeceased
beneficiary goes that person’s “issue” (children and grandchildren, etc.) while the
immediately following sentence says that person’s share goes to Person F.
This badly written will provided employment for two attorneys and created a legacy
of bad feeling. Certainly the result was not what the will writer intended.
