For the past couple of weeks we have written about some of the potentially problematic issues that can arise when people decide to use DIY wills and other estate planning tools. A DIY will is not necessarily problematic, nor is any other estate planning tool you choose to make without an attorney’s assistance. Unfortunately, there is a very big difference between making a legally valid DIY will, and making an effective one. A recent story out of Florida highlights this important difference.
Florida Woman’s DIY Will
In 2004, Florida resident Ann Aldrich decided to make a last will and testament using a DIY form she purchased. In that document she stated that she wanted her sister to receive her entire estate. Should her sister die before she did, Aldrich said she wanted her entire estate to pass to her brother.
Aldrich died several years after making her will, and once the document got the probate court, a couple of problems arose. The case made its way to the Florida Supreme Court. In its ruling, the court determined that at least part of the Aldrich estate would pass to Aldrich’s two nieces. Even though her will made no mention of any relative other than her sister and her brother, her nieces actually inherited a portion of the property she left behind.
DIY Will Problems
The court made its ruling based on two key mistakes. First, Aldrich made gift clauses in her will that identified specific property. While there is nothing wrong with specific gift clauses, wills that rely on these types of clauses exclusively can ignore property. The specific clauses in the Aldrich will did exactly this, and did not address any property that Aldrich might have acquired after she made her specific gift choices.
The second problem with the Aldrich will was that it lacked a residuary clause. A residuary clause is a type of gift clause that addresses leftover property. Residuary clauses, though not required under any state law, are essential if you want to make sure that your will catches all the property you leave behind. These clauses serve as a kind of safety net. If you include gift clauses that leave out certain property, the residuary clause will be there to catch what you missed.
So, the Supreme Court of Florida determined that because the will lacked a residuary clause, and because Aldrich acquired property that she didn’t otherwise address in her will, the left out property would have to pass in accordance with Florida intestacy laws. This means that her two nieces inherited property from her estate even though that was never Aldrich’s choice.