When my brother died, my siblings and I descended on his office to go through his papers. We needed to determine what he owned, what he owed, and above all, who he wanted the remainder to go to when he died.
After two days of searching we had determined what he owned. We knew who his creditors were. What we had not found was his will, the document that would tell us who was to get what from his estate after he died. And so we called Bob, a good friend and an attorney — and the person our brother would have most likely asked to draft a will, if he had a will. Unfortunately, Bob couldn’t recall preparing a will, but said he would check his files. We were not optimistic.
The evening of the following day, we were gathered at my brother’s home discussing funeral plans when we heard a knock at the door. I answered, and there stood Bob, holding some papers in his uplifted hand, a smile on his face. He’d found my brother’s will.
But what if he hadn’t?
Well, there’s always the laws of intestacy — the state rules that kick in if someone dies without a will. In Wyoming those rules say that if the decedent — my brother in this case — dies and leaves both a surviving spouse and children, the surviving spouse gets 1/2 and the children share the other half. In Utah, the surviving spouses gets the first $75,000 and splits the remainder half and half with the children. (There’s more, but for our purposes, this is enough.) If it’s not obvious, the rules vary somewhat state to state.
But what if you just know there was a will, but you simply can’t find it? A Utah case might give you hope. In the Matter of the ESTATE OF Juanita Marie VALCARCE, two of Juanita’s siblings urged the court to admit her lost will into probate — that’s the will that had presumably been properly signed and witnessed by two disinterested adults, but that no one could find. The court agreed and probated the lost will. How’d that happen?
During trial, [the two brothers] called attorney Jeff Thorne, who testified that sometime in 1991 he had prepared the 1991 Will for Decedent. Thorne believed that the 1991 Will was properly executed, that the original of it was delivered to the Decedent, and that, consistent with his firm’s practice, he retained only an unsigned copy of the 1991 Will in addition to the notes he made during his meeting with Decedent. Although Thorne did not have a specific recollection of Decedent executing the 1991 Will, he explained that it was his firm’s practice for secretaries to act as witnesses and for the attorney to act as a notary in executing a will. Thorne believed the original 1991 Will was properly executed by the Decedent, witnessed by two firm employees, and notarized by him because, if it had not been, the original would have been kept with the copy in the firm’s files. Thorne also testified that his firm was paid for drafting Decedent’s 1991 Will, which further indicated that the original had been signed and executed. (Emphasis supplied.)
Did you get that? The court allowed the lost will to be probated because Juanita’s attorney testified that based on his firm’s regular office practices, there was no doubt in his mind that she properly executed her will. He was also certain that the copy of that will he had in his office files mirrored the terms of the executed but lost will.
The lesson? Oh, nothing more than here’s one more reason to have an attorney draft your will rather than using one of the online will drafting services. Why be sorry when you can be safe?
Gregory Taggart is an attorney specializing in Estate and Business Planning. Email: firstname.lastname@example.org Website: www.gtaglaw.com