While I focus my practice on litigation (i.e., the process of filing a case in court and seeing it through to resolution), I am always amazed at the documents I encounter in my probate litigation practice. I recently met with a client who lost a spouse earlier in the year. The client wanted to probate the spouse’s Last Will and Testament, because while the couple had a number of children together, there were a few children who were not the biological children of the decedent, and who were never legally adopted by the decedent. Despite this, during life, the decedent had raised the children as his own and wanted to ensure that they were provided for upon his death.
The Will was printed on thick, cream colored paper and came in a fancy envelope with a highly embellished font announcing that this was the decedent’s Last Will and Testament. When I looked at the Will, however, I began to notice that there was a lot missing. The bottom right corner of each page did not bear the initials of the Testator (the person whose Will it is). The signature page had only an /s/ in the signature line, and there was no signature. The witnesses’ names were printed, not signed, and their addresses were not filled out – this is important, because if there is a dispute over the validity of the Will, an attorney needs a way to track down the witnesses. The Affidavit on the back did not have any of the witness information filled out, was not notarized, and was not signed by the Testator. And all of the pen-writing on the Will was in black – not blue – ink. Blue ink ensures the probate attorney knows that she is dealing with an original document, rather than a copy. Finally, the estate planning attorney had failed to include instructions or information letting the client know that in Kansas, she only had six months from the date of her husband’s death to admit the Will to probate. By the time I met with her, the statute of limitations had come and gone.
My client was appalled to know that because the Will had not been properly executed, that she would be forced to into a probate process called intestacy – when there is no Will. That means that regardless of the decedent’s wishes, the state default statutes control. So instead of the decedent’s surviving spouse getting the entire estate, she gets half of the estate, and the decedent’s adult children share the other half of the estate equally. K.S.A. 59-504 and K.S.A. 59-505. Instead of decedent’s wish that two of the people who were not his children by law got an equal share of the estate and be treated the same as his legal children, under the statutes, those two individuals are entitled to nothing. K.S.A. 59-501 requires that legal children either be biological or legally adopted.
My client asked whether she should go onto a legal document preparation website in order to get a proper Will drafted, but the problem with many of the websites is that you do not work with an actual attorney. In fact, one of these sites have been sued for the unauthorized practice of law – which means that there is a business entity using software – not lawyers licensed to practice law – to work with clients assisting with the document creation process or advising clients on the law.
Most clients I see are outraged when they learn they have paid a lawyer a chunk of money to prepare documents to ensure their wishes are met, only to discover when they meet with me that the documents cannot be used in court and there is no way to get a refund, because many times the lawyer who drafted the document did so many years ago and is no longer in practice or cannot be located. It never hurts to double check your documents, ensure they are up-to-date, and contact a licensed attorney to get a second opinion or to make revisions to reflect major life changes.