I went to see a new client last week at her home. She wanted a durable power of attorney and a health care proxy. I asked if she had an updated Will, and she said "Yes, I don’t need one of those." I asked to see it. It was made in 1962. Other than the fact that her husband, the named executor, had passed away years ago, and her children no longer needed the guardians that had been appointed in the Will, the terms were essentially how she wanted things distributed – to her children in equal shares. To a lay person, the Will looked fine. But, it was the things that were missing that a non-lawyer would not know to look for which made me recommend to her that we draft a new Will.
I first explained that her Will did not contain a self-proving affidavit. This is a statement signed by the testator and the witnesses and then notarized stating that the testator has signed the Will voluntarily, that he or she is over 18 and not under any undue influence. The purpose of this affidavit is to prevent having to track down the drafting attorney and witnesses when it is time to probate the Will. In this case, the witness names were illegible and the attorney had most likely retired, or even passed away.
In the past, when people moved around less, it was common for families to return to the attorney who drafted the Will to have it probated. The lack of a self-proving affidavit guaranteed that this would happen as the family needed the witnesses, who were most likely the attorneys secretaries or associates, to have the Will proved. These days, families move more, people don’t stay at the same job their whole lives and it would be extremely difficult to find witnesses 20 or 40 or more years after the drafting of a Will.
The other clause that was missing from this Will was one granting permission to sell real estate. Without this clause, the executor would have to petition the Court for a license to sell my client’s home, the major asset in her estate, after her death. This is a costly and time consuming process, which is easily eliminated by including a permission to sell clause in the Will.
When you are having your attorney draft new documents for you, be sure to bring the old ones with you to the meeting. Even if you think what you have is fine, the attorney will be able to spot any issues that may cause problems for your heirs down the road, and remedy them.
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