The Importance of Proper Drafting and a Good Attorney
From the MO Business and Estate Planning Blog by Steve Bahr and Austin Dowling
A client recently came into our office with an estate that needed to be probated. She was named the personal representative of her father’s estate which consisted of a home, some cars, and some other personal property. The decedent left a Will stating which heirs were to receive a portion of his estate (which was not the same distribution as would have occurred if the decedent had died without a will). Typically, this would have been a pretty ‘standard’ probate estate, but-for a critical mistake made by the attorney who originally drafted the decedent’s Will (the Will was not drafted by our office).
It is a standard estate planning practice to include what is called a self-proving affidavit with all Wills. The self-proving affidavit is executed by a notary public to the Will, attesting to the signatures of the witnesses who witnessed the Will being signed. For practical purposes, including a self-proving affidavit means that when the Will is admitted to the probate court, the attorney admitting the Will doesn’t have to locate the witnesses to certify their own signatures. Instead, the Will can be admitted automatically.
As you can probably guess, this particular Will had no self-proving affidavit, and we were forced to try and locate witnesses. Since the Will was executed more than ten years prior, this proved to be very difficult. After months of searching, we were only able to locate one witness (the court requires two for the Will to be admitted). Eventually we located the notary public to the original Will (who was nice enough to help us out) and had the Will admitted into probate, but the process of locating the individuals and filing the necessary forms to the Court was a very time extensive and costly process that could have easily been avoided. As a result of this mistake, there were also issues involving banks and potential foreclosures that added additional costs and stress to the personal representative.
This story is a perfect example of why it is important to make sure you engage an attorney with experience in estate planning to draft your estate planning documents. We have seen and heard similar stories from people who used form websites like LegalZoom. There is no replacement for an experienced attorney who will tailor your estate plan to your needs and ensure that your estate plan includes the requisite formalities. Your heirs and personal representative will certainly agree.