Fixing Bad Wills

Video

Good morning, folks. It’s attorney Andy Stautz at Stautz Law. I do Indiana probate and estate planning, and today we’re talking about fixing DIY wills or bad wills.  

So our last video, which I just did, you know, 10 minutes ago, I was talking about how DIY wills go bad. You know, I said, Look, I’ve been seeing a bunch of probate estates where the family says, you know, here I’ve got this will and it’s a disaster, right? Like it’s not signed properly, it’s invalid, whatever.  

Can you fix it?  

Ounce of Prevention Worth a Pound of Cure

So, start with the start. The best way to fix a DIY will or a bad will is to, while the person is alive, go get a new one written, by a professional, right? It’s way easier to fix problems before you die.  

But let’s assume it’s too late, okay? The person passed, all that’s left is this handwritten will or bad will, you know, improperly executed will.  

What can we do?

Possible Solution #1: Family Settlement Agreement

The easiest fix is a is a family settlement agreement, which is kind of a nickname for a statutory procedure in the probate code. So that’s Title 29, and then Section 9, I think. I’ll cite it in the transcript. [Statute is here: Indiana Code 29-1-9]

And basically it says, You’re allowed to come to an agreement to compromise a controversy about the effect of a will. So you can use a settlement agreement that’s to say, we, the family members, we, the heirs, agree to treat this will as valid.

Now, the problem with that is, or, you know, that’s great if you can do it, but it requires the consent of everybody involved. So everybody who would get something under no will and everyone who would get something under the new will, right? So if you’ve got a will leaving everything to Jerry, but the intestate heir is Sam, then, you know, Jerry can’t say, I agree to treat the will as valid, right? Sam and Jerry have to agree. Everybody’s got to agree. And that requires finding everybody, you know, making sure they’re okay with it.  

So sometimes it’s possible, but sometimes it’s just not.  

Possible Solution #2: Supervised Administration

Another fix, if you can’t find everybody or everybody doesn’t agree, is to go for a supervised administration and then get a court order directing, you know, directing administration. So you can petition the court for a determination [These are in I.C. 29-1-6-5 and I.C. 29-1-6-6, for example] and say, you know, are we following this? Is this valid? You know, what should we do? It might not come out like you want, but that way at least you’ve got, you know, nobody gets in trouble for relying on a court order, right? Like it’s a great way to solve that.  

Possible Solution #3: Disclaimers and Assignments

And then finally, you know, you can do something similar to a family settlement agreement through disclaimers or assignments of interest, which are a little bit, are subtly different from each other, but both have the effect of someone giving up, right, their rights, either to an intestate share or under a will.  

So sometimes you can use those to kind of either fix the will or achieve the same effect as the will intended, putative will intended. So, you know, if Oh, let’s say the intestate heirs are Sam and Jerry again, and the will leaves everything to Jerry. The invalid will leaves everything to Jerry. Well, if Sam says, you know, I give up my share, then Jerry gets everything. You know, that’s basically the same effect as the will by a roundabout way. But in all of these cases, right, we’re doing problem solving after the fact. We’re trying to make up in probate for what we could have done with, with proper planning ahead of time.  

Recommendation: Do it Right and Avoid Problems

Now I do both estate planning ahead of time, making the wills and probate after the fact. So for me personally, as a lawyer for my business, it doesn’t matter what you do, but I’m here to tell you doing the will right up front, you know, saves a lot of time and trouble. I don’t mind solving the problems later and it’s kind of fun. But it takes more work. It’s more expense to you and the other heirs.  

So those are some ideas. There’s no legal advice here. That’s just kind of talking about what I’ve seen. If you need help with a problem, a probate problem, or fixing a will, call me. My contact information is on the end screen and you’re on my website. So take a look around and I look forward to working with you. Thanks. Bye.