Every day of the week, families will seek my help with probating a loved one’s Will. More times than not, there are issues with probating the Will that requires experienced legal counsel. They’ve run into something unanticipated or they feel overwhelmed. Equally, I often run into individuals who are very confident in the Will they’ve written and they expect their family will have no issues upon their passing. When I’m sitting at our conference room table, whether in our Marietta office or our Chattanooga office, as I listen to the frustration of their family, I often wonder if the person who was so confident is now rolling over in their grave. Here are just some of the unanticipated issues I have helped people through over the years.
- Unable to find the original Will – “I’ve set things up so that my family can take the Will to the Courthouse, file it, and the probate will be simple.” I’ve heard this one a number of times only to have their family at my conference room table pulling their hair out because they can’t find the original Will. “He told us he had a Will, but we’ve turned his house upside down and we can’t find it,” they’ll say. As part of my new year’s resolution recommendations, I tell people to find their estate planning documents to ensure they are still in the same place. Make sure your family knows where you keep the original Will and don’t assume they’ll simply be able to find it once you pass.
- We only have a copy of the Will – “We couldn’t find the original Will, but we did find a copy.” This is problematic because the Court will presume that you wanted to revoke the Will if the family can only produce a photocopy of the Will. After all, the Court presumes, if you wanted the disposition of your assets as outlined in the photocopy to be done, you would have made sure the family had the original Will. Again, make sure you have the original Will and that your family is able to find it.
- There is no Self-Proving Affidavit with the Will – “Thank goodness we were able to find the original Will because now everything will be so easy!” Not so fast. From time to time, families will bring me the original Will without the Self-Proving Affidavit. The Self-Proving Affidavit allows your family to file the Will without the need to contact the witnesses to the Will. Without the Self-Proving Affidavit, your family will need to track down the people who witnessed the signing of your Will and, if they are actually able to find them, pray they will be cooperative enough to fill out a 10 question Interrogatory in the presence of a Notary, all the while spending time and money so they can move the probate of your Will forward.
If you’ve taken the time and expense to create a Will, make sure you complete a Self-Proving Affidavit and, again, make sure your Family will be able to find the original of both.
This is just a sampling of the issues that families have to face when things don’t go perfectly. Don’t be so overconfident that you don’t have your estate plan reviewed every year or two by an experienced estate planning attorney and have taken the steps to ensure your family will be able to find the originals of your estate plans. Additionally, there are other estate planning vehicles you can use to make it easy on your family when you’re no longer here. If you’d like to discuss these issues and have your plan set up the right way, the first time, call us at (678) 809-4922.
John P. Farrell, Esq.
Mr. Farrell is the author of Estate Planning for the Modern Family: A Georgian’s Guide to Wills, Trusts, and Powers of Attorney. You can learn about his book here and learn more about John here. Join the more than 1,000 people who subscribe to his Newsletter here. Feel free to send John a message here.