I have a Last Will and Testament. What could go wrong?
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. Here is just a sampling of the issues your family will face when you're no longer here.
We can't 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.