Wills: November 2010 Archives

November 30, 2010

Notarizing Those Wills, Part II

oops.jpgDear Liza: I am confused. You recently wrote a post that said NOT to notarize Wills. But, in my state we routinely have the witnesses to the Wills sign an affidavit in front of a notary public. The affidavit states that the document signed was a Will and that it was properly signed and witnessed. Our lawyer told us that by doing this, which is called making a Will "self-proving," it makes it easier to submit the Will to the probate court because it eliminates the need for the witnesses to appear after our death, unless the Will is challenged, which is rare. What's up?  Well, what's up is that I was WRONG. As one of my readers helpfully pointed out, virtually instantly, I blew it.  Here's a better answer. For a Will to be legally valid, it must be signed before two witnesses (three in Vermont). Signing a Will only in front of a notary isn't going to create a valid Will, which is what I was thinking when I wrote that earlier post. But,of course, law being the law, it gets a bit more complicated. After you create a valid Will, then, in most states (except Louisianna, which has it's own rules and also California, where I practice) you can have the witnesses sign a statement in front of a notary public that simplifies court procedures after you die.This is called a "self-proving" affidavit, and that, dear reader, is what your lawyer was talking about.

 

November 23, 2010

Appointing a Bank as Executor

  woman banker.jpgDear Liza: Is it possible to appoint a bank Executor of Estate ?  I am not comfortable appointing family members or friends for a number of reasons. You bet. Many banks have trust departments who can provide services to families, as executors or trustees. They, of course, charge for this service. So, if there is a bank or financial service firm that you already work with, ask them if they have a trust department. Ask them what their fees for this are -- many charge a percentage of the assets under management, which can range from .75% to 1.5%, depending on the size of the estate. Also ask them if they require special language to be in your Will or trust, some do, and some don't. If they do, get the language and ask your attorney to incorporate that into your documents, or, if you're doing them yourself, make sure you're doing what the bank requires. Two things to think about, though. The first is that the banking industry has been through some, ahem, turmoil, lately--so you need to consider how you'd feel if your friendly local bank gets sold to some megalopolis bank and some banker in a far away city takes over as your family's executor.  If that's not OK with you, you might want to name a second choice and say that if your local bank is sold, you don't want the bank's successor to be your executor, but want your second choice to serve instead. The second thing is, if there's a particular banker you really like, you can add language to your documents that says you want that banker to do the job, even if they move to another institution with trust powers.

November 19, 2010

When is a Will Valid?

Will being signed.jpgDear Liza:My wife misunderstood the three spaces at the bottom of each page of her will, and placed one of her initials in each space, then realized her mistake and scribbled them out. She then initialed the proper space, and the witnesses each initialed above the scribbled out initials. The will was otherwise properly signed and notarized. Would these scribbled out initials invalidate her will? The only part of your story that worries me is the 'notarized' part. While the validity of a Will is a question of state law (and so differs from state to state) as a general matter, Wills are signed before WITNESSES they are not notarized. Anyone should be able to make a Will, even those who don't have proper ID or can't afford to pay a notary. So, a notarized WIll is not valid, generally. But perhaps you just meant that the Will was signed in front of witnesses who were over eighteen and not people who would benefit in any way from that Will. If so, I think you are fine. Courts really want to be certain that a Will represents the intentions of the testator (that's lawyer talk for the person who made the Will). A scribbling error, crossed out by the testator, at the time the witnesses were there really ought to pass muster. I would certainly submit it to probate. Of course, if you're really worried, just do another one.