Although not all online or store-bought 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.
FACTS: Wife (hereinafter referred to as “Zsa Zsa”) has only a few months to live and is going through a divorce from her husband (hereinafter referred to as “Conrad”) who lives in a different state. The divorce is unlikely to be finalized due to her short life expectancy. Zsa Zsa’s sister, Eva (who resides and has her domicile in Europe) has come to Texas to assist Zsa Zsa during her final days. Zsa Zsa 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. Eva buys a “fill in the blanks” Will for Zsa Zsa. Eva (in Eva’s handwriting) prepares and completes the Will naming Eva as the sole beneficiary and has Zsa Zsa sign before two witnesses (but it is not notarized).
The Will names Eva as the Executor and Zsa Zsa’s other sister, Magda (who also resides and has her domicile in Europe), 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 Eva’s handwriting – not Zsa Zsa’s. This will likely result in a determination that the Will was invalid. As a result, everything would likely pass to Conrad (the husband who abandoned her on her deathbed) under laws of intestacy.
PROBLEM 2: Undue Influence.
Not only was the Will in Eva’s handwriting, but she named herself as the sole beneficiary. So even if a court determined the Will was valid, Conrad would likely be successful in challenging its validity due to her undue influence. Eva’s relationship with Magda 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.