Planning Matters.

It’s happened twice in my career so far: the deathbed will. In both instances, the situation was exceedingly sad – individual gets sick; realizes their estate plan isn’t up to date; and attempts to re-write their “will” (or write it the first time) by text message or by signed affidavit. In both cases, although the final wishes of the individual were crystal clear, both wills had no legal effect whatsoever, and their assets ultimately passed via intestate succession (presumably, to family members they didn’t want those assets to go to). (“intestate succession” are the rules that transfer your final assets if you have no will).

Here are a few things to remember, to ensure your will and estate plan are enforceable upon your passing:

  1. Planning Matters. Lets be honest, nobody likes talking about their estate plan, but it’s necessary if you want to do anything that is outside the rules of intestate succession (and most people do!)
  2. A will must be signed while you are competent to make important decisions, so the fact that a person is even making a will (even a properly executed one) while in the hospital is always suspect. Therefore, planning matters! A will executed while you’re healthy will be much easier to enforce than one executed in your final days. Remember #1 above – because if the will isn’t enforceable, the default rules are intestate succession.
  3. A will must be signed in the presence of 2 witnesses, and the witnesses cannot be beneficiaries of the will (i.e. the boyfriend of the person writing the will who stands to receive everything, shouldn’t also be witnessing the signature.). The two witness rule is super important! Notarization of your signature (like on an affidavit) is not good enough!
  4. A will also should not be witnessed by nurses or other caregivers who are providing final care to the person making the will. Sadly, this is often the case, and while not strictly required by law, I advise clients that, again, a Will signed by a totally disinterested witness (who isn’t providing care) will be much more enforceable.

We don’t write a ton about estate planning at OG+S, but deathbed wills are a horrible scenario no family (or their family’s lawyer) wants to contend with. It isn’t fun, but it is easy to get a simple estate plan in place. As we look ahead to 2020, I can tell you that my wife, Kim, and I will be getting our estate plan taken care of, for exactly this reason.

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