Do It Yourself Estate Plan – Part 2

In last week’s post I was telling you about Mary and John’s do it yourself wills.  For less than $100 they purchased a software program that helped them assemble their wills.  When John died only then did Mary learn of the mistakes they made.  I already told you about the IRA which John intended to go to Mary but instead will go to the child from his first marriage.  There is, however, a bigger mistake.

The residuary clause stated that the rest of the husband’s property is to be distributed to the husband and if he does not survive then to his children from his second marriage.  If I prepare my will and leave everything to me, that is obviously a mistake.  My guess is that John prepared Mary’s will first and then took her will and changed the names when preparing his own.  He overlooked this very important clause.

Mary was quick to point out what he intended and I didn’t disagree with her assessment that he meant to leave everything to her.  The problem, however, is that we can’t substitute our own belief as to what he intended.  So, what options does Mary have?

I told her that once we probate the will we would need to apply to the court for an advisory opinion from a judge stating what John’s likely intent was before we could simply distribute everything to her.  In the normal instance, New Jersey probate does not involve a judge and is very cost efficient.  In this case the legal fees involved would most likely be a few thousand dollars or more, exceeding what it probably would have cost to hire an estate planning attorney to prepare their wills.   The old adage “penny wise pound foolish” certainly applies here.

Mary then asked whether she would receive everything if the will is deemed invalid so that John would in essence pass away without a will.  I explained that under the intestacy laws – the laws that determine what happens to assets if there is no will or the will does not provide for it – she would not receive everything because not all of her husband’s children are hers.  Some portion would go to the children, including her husband’s child from his first marriage.

Again, Mary reiterated that this is not what John wanted but unfortunately we don’t get to make that call.  Only a judge can decide that issue.