Although not all online (Legal-Zoom) or store-bought (Office-Depot) Wills create legal problems, the following factual situation is an example of the potentially perilous path that an unwitting individual may traverse when doing their own Will.
Wife has only a few months to live and is going through a divorce from her husband, who lives in a different state. The divorce is unlikely to be finalized due to her short life expectancy. Wife’s sister (who resides out of state) has come to Texas to assist Wife during her final days. Wife has no children and no Will or trust and several individual accounts in addition to real estate owned jointly in the state where Conrad resides. Wife’s sister buys a “fill in the blanks” Will for Wife. Sister prepares and completes a Will (in her own handwriting) naming herself as the sole beneficiary and has Wife sign before two witnesses (but it is not notarized).
The Will names Sister as the Executor and Wife’s other sister as the alternate Executor. The Will does not detail the powers of the Executor or any relationship to court supervision.
Although it was inexpensive to buy a Will that is “valid in all 50 states”, here are just a few of the problems if there was an attempt to probate (the court process of validation) it.
PROBLEM 1: Will not in handwriting of testatrix.
The Will was in Sister’s handwriting – not Wife’s. This will likely result in a determination that the Will was invalid. As a result, everything would likely pass to Husband who abandoned her on her deathbed under laws of intestacy.
PROBLEM 2: Undue Influence.
Not only was the Will in Sister’s handwriting, but she named herself as the sole beneficiary. So even if a court determined the Will was valid, Husband would likely be successful in challenging its validity due to her undue influence. Sister’s relationship with other Sister would likely be strained as well.
PROBLEM 3: Executor had no authority to act independent of court supervision.
Wills should state the Executor can act without the supervision of the court (if you trust the Executor). Furthermore, duties (such as the power to sell real estate), should be described. For example, since the Will was silent as to independence and duties of the Executor, a title company would likely require the Executor get authority of the court to sell the real estate.