The Problem of the Do it Yourself Will

“I can do the will myself.  It’s pretty simple and I can get the form online.”  I’ve heard that comment more than a few times in my career.  Recently, however, I received a call from someone whose family member did just that and created a huge problem.

Mary called concerning her dad who is 80 and receiving Medicaid benefits in a nursing home.  Her father’s brother, her Uncle Joe, had died with assets of approximately $50,000.  He also left a will leaving those assets to Mary and her brother.  The problem, however, is that when she attempted to probate the will as the named executor, the Surrogate – the elected official in New Jersey charged with overseeing the estate administration process – refused to admit the will to probate.

The requirements in New Jersey to admit a validly executed will are that it must be in writing, signed by the testator (the person who’s will it is) or in his/her conscious presence and at his/her direction and signed by two witnesses within a reasonable time after they either witnessed the signing or the testator’s acknowledgement of his signature on the document.

There are some exceptions to this rule so that even if these exact requirements aren’t met, a will still may be admitted to probate.  Mary didn’t make clear to me the reason why the Surrogate refused to accept the will but she said she had sought advice from several attorneys, all who told her that trying to get a judge to admit the will would be a futile effort.  Uncle Joe had obtained a form on the internet and had attempted to fill it out himself.  That’s not why she called me.  It was the consequences of his failed attempt to create the will that caused her to reach out to me.

Next week I’ll share with you the dilemma Mary faced.