I appreciate your column, learn from it, and read it carefully. Many of your recent readers have asked you questions about wills or what happens when someone dies without a will. I'd like to add my experience to the scenarios I've already covered in recent months, because it adds to your discussion of the consequences of avoiding proper estate planning.
A court-appointed attorney once called me to tell me that my mother's cousin had died intestate. The deceased had no children, husband, or brothers. The estate was divided based on next of kin, in this case the deceased's six cousins.
A lawyer called me. He was tracking down the deceased's distant relatives, as most of his six cousins were no longer alive. In fact, only one cousin lived after the deceased person's death. The descendants of each deceased cousin were collectively given a share equal to 1/6 of the deceased's estate minus court and attorney fees.
So, about a year after this person first died, my siblings and I received an inheritance of about $9,000. The only cousin still alive at the time was legally entitled to one-sixth of the estate, roughly $60,000. The law does not take into account whether the potential heir deserves or needs the inheritance, but rather uses subjective formulas, as anyone would expect.
Court documents
This makes sense, but I can't help but feel that the deceased cousin did not want the bulk of his estate to be given to his very wealthy cousin who was advanced in age and had a personal estate worth over $30 million. This person received the largest share of the deceased's estate.
After the probate process was over, I requested a copy of the court papers to learn more about my distant relatives. And here an unexpected surprise occurred: the court papers included a document with “Will and Trust” written on it, signed by the lawyer and the deceased person, leaving their entire property to me and my siblings, since our mother was the cousin the deceased was with. The deceased was closest to.
When I asked the lawyers why they told me there was no will, they pointed out that the will lacked the signature of witnesses. My mother's cousin had wishes, expressed those wishes in writing, and signed the written will in front of an attorney, but did not witness the signing.
As I have learned through this experience, a signed will is not legally considered a “will” even if it is prepared by an attorney, and is called a last will and testament, unless it is also witnessed. Perhaps this is true only in our state, but it was a shocking lesson.
I hope that individuals who think their hand-signed notes will suffice will think again, as I have often warned. The cost of attorney fees to prepare a formal will is worth the peace of mind it provides.
Yes, I would rather my hard-earned savings go to the people and causes that matter to me, not to distant relatives who are so financially secure that they wouldn't benefit from inheriting part of my estate. Preparing a will or trust gives us one last opportunity to make a difference for others. I personally would like to correct this as my final work.
What do you think?
Glad you have a legal will
“If someone with millions of dollars can make such a mistake, who's to say that others forget the importance of their own John Hancock?”
Market watch illustration
Dear Saeed,
Your story is disturbing, and I believe it is not uncommon.
A trust and estate attorney once told me that she had prepared the will of a very wealthy man, and when she visited his office, he showed it to her and where he kept it. He had been happy all the time they had spent putting it together, and he was happy that he had finally divided his estate in a way that he believed was just and equitable, and reflected his wishes, his charitable interests, and his relationship with his closest friends. And relatives. There was just one problem: it was still in a sealed envelope where he believed it was safe. She pointed out the obvious and easy mistake: “You didn’t sign it.” If someone with millions of dollars can make such a mistake, who's to say that others forget the importance of their own John Hancock?
You are correct that the legal framework that determines whether a will is valid varies by state. In New Jersey, for example, “a will must be signed by the decedent or by someone with the authority to sign on behalf of the will maker,” according to Bratton Estate & Elder Care attorneys. “The will must also be signed by at least two other witnesses. For the signature of these witnesses to be valid, the signers must add their signatures to the document as quickly as possible. The State of New Jersey will accept handwritten wills whether they have been attested or not, provided that it is clearly The document was the will of the deceased. The document should also be clear and clearly written in the deceased's handwriting.
Believe it or not, some people still want to write their wills by hand, but holographic or handwritten wills are only legal in about half of the states in the United States, including California. Whether written or printed, always write your will under the supervision of a trust and estate attorney. A word of warning: it is not worth writing a will cheaply or downloading it from the Internet. Too many things could go wrong. Sometimes, people leave behind possessions that no longer exist. (That Rolls Royce? He sold it to pay the taxes on his house.) Or they leave their entire fortune to a lucky cousin and five others to claim their share of the estate. (“I leave my entire estate to my cousin, John Murphy.” Is there more than one cousin named John Murphy, or worse yet, has some people neglected to name the person in full?)
Online wills are often free or low-cost, but may contain insufficient language. Words matter. “If the will stipulates that property should pass to the man’s wife and surviving children, what happens if the man has two previous wives and several children from other marriages?” asks the law firm Landskin and Ricaforte. On the other hand, suppose the same man had three daughters and left “equal shares of the estate to my descendants.” The will was written when his children were teenagers, but two of them had children when he died. “Descendants” includes children, grandchildren, and great-grandchildren, so His children and grandchildren were to receive a fifth of the estate, although he intended to give a third to each daughter.
It is also possible that the terms of the will merit its invalidation. You can, for example, typically object to a will or trust for the following reasons: lack of testamentary capacity, undue influence from a family member, and improper execution, which is exactly what happened to your distant cousin's will. If he had signed his own will, his assets would be distributed according to his wishes, and you would likely be in a more comfortable financial position. I have received far too many letters about relatives, “new friends” or even caregivers alienating the elderly, putting themselves in their bank accounts as co-signers or co-owners, and forcing the person to write a new will.
The biggest mistake many people make is that they do not write a will, nor leave any estate plan at all. Less than half of Americans have written a will, although three-quarters of people age 65 or older have written one, according to a 2021 Gallup poll. Only 20% of adults under 30 have a will. “High-income Americans are more likely than low-income Americans to report having a will,” Gallup said. College graduates and white Americans are also more likely to have volition. After building a lifetime of wealth, regardless of whether it's $500,000 or $5 million, it's a shame to leave it up to state laws to decide how to distribute it.
You can email The Moneyist with any financial and ethical questions at qfottrell@marketwatch.com, and follow Quentin Fottrell on X, the platform formerly known as Twitter.
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