Estate Law: Don’t try to DIY

Though it seems easier to write your own will and discuss personal matters with loved ones, involving a lawyer may save you and yours time, money and headaches.

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We asked the 2017 Top Lawyers in Northern Virginia to talk about a few scenarios that would require an everyday person to reach out to an estate lawyer. Here’s what they had to say:

“A few scenarios in which an estate lawyer could help are: One, when two divorced people marry and each has young children from a previous marriage: Each cannot adopt the new spouse’s children because the other natural parent is alive. Like most couples, they own all their property jointly with survivorship. If the husband dies and then the wife, each without wills, the children of the wife will get everything, and the children of the husband will get nothing. Surely, the husband would not want that.

Two, when parents have an adult child who has a drug problem [and] has since become clean but the parents are worried that the child will relapse: If the parents die, they don’t want the child’s inheritance to support an addiction, but they would want it to fund treatment, if necessary.

Three, if a young couple has minor children and one parent dies: It is likely the survivor will remarry at some point and possibly have more children. Each young parent wants their half of the joint property to go to their own children and not to the surviving spouse’s next spouse or later children.

Yet another could be if there are parents whom have a disabled child. They don’t want the child’s inheritance to disqualify the child from receiving government benefits, but they want any inheritance to enhance the child’s life.

A person needs an estate lawyer to prepare a will for them if they want to leave their property to anyone other than whoever the state law provides for an intestate estate.  For example, if an unmarried person without children wants his/her brothers and sisters to receive his/her estate or wants charity to receive his/her estate, that person needs a will because without a will the estate will go to the person’s parents.

A person needs an estate lawyer if they want a will at all; they shouldn’t try to write their own will.  I have seen cases where the person tried to write a will by copying parts of an earlier will and left out important parts. I am currently involved in a case where the person used an internet generated or form-book will and executed it improperly (twice), so it wasn’t valid. I have seen many cases over the years where a person wrote their own will and validly executed it, but the way the person wrote the will (although they knew exactly what they meant) could be interpreted more than one way, so thousands of dollars and months of delay were required to have a court determine how the estate was to be distributed. People try to change wills by crossing out parts, writing in the change and initialing the change (not a valid change and may invalidate the whole will). There is too much at stake and it is too expensive to try to fix mistakes, so it is better to have a competent professional do the job in the first place.” –Thomas H. Campbell, Partner, Yates Campbell & Hoeg LLP

A comprehensive estate plan should address incapacity protection (identifying and empowering a succession of individuals to serve as substitute medical and financial decision-makers in the event of incapacity), probate avoidance (establishing a structure to avoid the time and expense associated with court-supervised probate following death), distribution planning (controlling the who, how and when associated with the distribution of assets following death) and estate tax planning (minimizing or eliminating exposure to transfer taxes following death).” –C. Daniel Vaughan, Principal, Vaughan, Fincher & Sotelo

(2017 Top Lawyers, Advice from the 2017 Top Lawyers, December 2017)