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Legal Notes: Writing Your Own Will

Attorney Pamela OddyAttorney Pamela OddyLately, I find myself settling multiple estates in which the decedent wrote his/her own will. In each case, I do not know what the motivating factor was in not consulting a lawyer for this service. Was it a desire to save money on a lawyer's fee? Was it because they did not trust lawyers? Or was it because they felt that their last wishes were really simple and straightforward and, therefore, there was no need to consult a lawyer? Whatever the motivation to avoid hiring a lawyer to draft a will, the members of the family left behind are now paying a rather high price.

In one estate that I am settling, the decedent hand wrote his own will. In another estate, the decedent used a form that he retrieved from an online source. In the third case, the decedent copied a friend's will and adapted it to his own purposes and left out clauses that he either did not understand or thought to be irrelevant. All of these wills had one thing in common: They omitted very valuable clauses that are designed to make it easier and cheaper to settle an estate.

Whatever the motivation to avoid hiring a lawyer to draft a will, the members of the family left behind are now paying a rather high price.

A common denominator of these "do it yourself'' wills appears to be the omission of a clause that gives the personal representative of the estate the authority to sell the real estate without obtaining permission from the probate court. The technical name for the clause is "Power of Sale." lf this clause is omitted from the will, it forces the personal representative to petition the court to obtain permission to sell the real estate. The petition takes time to be prepared because of all the supporting documents that it requires before submission to the court. During this pandemic, the court is extremely slow and it is not uncommon for this petition to take 4 to 6 weeks to be prepared, submitted, and approved. In the meantime, the buyer might walk away from the sale because it is taking too long or the buyer might lose his mortgage interest rate lock. In addition, creditors who are dependent upon the sale of the house for their payment such as plumbers, contractors, or electricians who may have had to put substantial work into the house to make it saleable are out of luck. The cost of the petition is $250 just to file with the court. On top of that fee, the lawyer also charges for preparation of the petition and also for the supporting documents that the petition requires. All of these problems can be avoided if a lawyer is the one to draft the will.

In another estate I am settling, it has taken over one month to obtain the court’s authority to sell the real estate. I am sure that the pandemic has slowed down the court's response. However, in the meantime, the buyer has lost his interest rate for his mortgage and the sale has had to be extended.

The bottom line is that if the person who drafted his own will thought he was being smart not to consult a lawyer, then he would most certainly be horrified to know that if a lawyer had drafted his will, it would have saved the estate at least $1000, if not more. This is a perfect example of being penny wise and pound foolish.