Stautz Law

Tag: Wills

  • Fixing Bad Wills

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    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.

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  • How DIY Wills Go Wrong

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    Introduction: Writing Your Own Will?

    Good morning, folks. This is Andy Stautz at Stautz Law. I’m an Indiana estate planning and probate attorney, and today I am here to talk about DIY wills and how they fail.  

    And this talk is prompted by my recent experience. I’ve had several estates in the past few weeks where there have been complications, expensive and unforeseen complications arising from a decedent who left a DIY will, right?  

    So these are people who thought, oh yeah, well, you know, I can write a will, I can do it myself, okay? And they fail in all sorts of different ways, but there are a few that are the most common.  

    Can You DIY a Will?

    So let’s start at the start. Can you write your own will? Yes, you can. Obviously, and there are now lots of websites online where you can download a will. It’s an option, it’s out there. But there are some traps. And I think you should, it’s worth paying a professional to do for you to make sure you don’t fall into one of these traps.  

    Problem #1: No Witnesses!

    So what am I seeing? What do I see? Number one, most obvious is the will was never witnessed. Okay? So if you just write on a piece of paper, you know, the house goes to Jerry and you sign it, that’s great. You know, hopefully your heirs will honor that. But they don’t have to. It’s not a valid legal document. We can’t present it to a court and say, this is his last will and testament because Indiana law requires two witnesses. [That statute is I.C. 29-1-5-3]

    Problem #2: Interested Witnesses

    Which brings me to the second obvious problem. A lot of times it’ll be, I leave my house to Jerry, signed, you know, Bob and Jerry. And it’s like, you can’t do that either, okay? A witness who’s interested, you know, the guy who gets stuff under the will can’t be a witness to that bequest. Okay, it doesn’t necessarily invalidate the whole will, but Indiana law makes an interested witness invalid as to the bequest, you know, as to the gift he gets. So giving the house to Jerry and signing by Jerry, that’s no good. [That statute is Ind. Code 29-1-5-2(c)]

    What are some other common problems? Those are probably the two most common.

    Problem #3: Vagueness, Ambiguity

    Vagueness is another common problem I see. It’ll say, you I leave my car to Jim and it’s, you know, maybe that writing is dated years ago. It’s like, okay, well, you know, which car? What are we doing here? And it’s a bigger problem for real property. I mean, a car, no big deal. But, you know, land records are more formal. The recorder has to accept the evidence that the transfer happens. So that’s another problem.  

    Problem #4: No Self-Proving Affidavit or Consent to Unsupervised Administration

    Finally, are things that aren’t necessarily like fatal to the will, but are annoying to the heirs who have to administer it. And probably the most annoying is, you know, no self-proving affidavit. So if you just sign the will with two witnesses, it’s valid. But to get it admitted to probate, one of the witnesses, one or more of the witnesses has to come forward and swear that it’s actually the will.  

    You know, you can avoid that — and all my wills, all professional wills avoid that by adding a self-proving affidavit to the end, which is just some magic words. But what it does is it excuses you from having to bring the witness back at time of probate. So just a little trick.  

    And finally, I’ve never seen a DIY will with a consent to unsupervised administration. But if you’ve got cooperative heirs, that little consent saves you like thousands of dollars in probate. Because it just, it lets you, it lets you use the unsupervised procedure, which is so much faster, so much easier. than supervised probate.  

    Conclusion: Save Time and Money, Do It Right the First Time

    So those are some common problems. There are more bizarre ones, but by far the most common is failing to properly execute it. And then the rest are subsidiary problems. So I think you should hire a professional if you’re thinking about getting a will done. It’s not that expensive. It’ll save you lots of money in the long run.  

    You know, I don’t care, I suppose, because, a messy probate is more expensive and that’s usually in legal fees. So it’s for your own good. Get a pro to look at it beforehand and save yourself trouble later. But that was just a quick talk about how these DIY wills go wrong and hopefully give you something to think about. Thanks. 

    Bye. 

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