It often happens that someone dies and a family member bring me their loved one’s will to probate in probate court. In reviewing the Will, we will often find that there are hand-written notes in the margins, “scratch outs,” and other attempted hand-written changes, sometimes with initials and dates, and other times none.
In most states, those attempted changes to the original signed Will are not effective. In some situations, the probate court may also request or require that one of the witnesses to the Will, or the preparer, or original witnesses to the Will appear in court to testify as to whether these changes were made at the time the Will was signed or subsequent to the Will being executed.
It’s not uncommon for people to believe that because they made hand-written notes on their Will or wrote an addendum, that will effectively change their Will. They do this to save time, or to prevent spending extra money on fees for professional services to revise what was previously a valid drafted will.
I have even received letters from clients who decide to make a change, but they never got around to getting into the office to formalize those changes. They think that this will suffice in case there is an accident, and they think that these letters of instructions will help. Although it is helpful to have something in writing that expresses a client’s desires, the Will itself may not be legally altered by these signed letters.
These errors in judgment on the part of a client may cause the intended changes to be ineffective and also cost the estate a significant amount of money if and when the Will is probated and a contest to the Will is defended by the estate. Those changes, which are likely relatively minor, are not expensive, and in some cases, a simple codicil, (document that changes the Will,) may be all that is necessary, as opposed to re-drafting the entire Will.
When a change in circumstances, assets structure, or a family situation occurs, it is best to contact your attorney so that your Will may be made promptly and correctly changed. At the same time, it may be advisable to review the individuals named within your Will as guardians, executors and trustees, as well as other documents, such as your Health Proxy and Power of Attorney, to ensure that the proper named are still appropriate to serve in their respective capacities.
There may also be changes in the total assets you own, which may require that a trust to be created. Or, if assets have significantly diminished, then it is possible that the need for a trust has diminished and reciprocal Wills may suffice.
By: Hyman G. Darling, Esq.
Legislation that has been submitted to the Massachusetts legislature by the Real Estate Bar Association (REBA) proposes to make significant changes to what many consider to be an outdated homestead statute.
In Massachusetts, homeowners and condominium owners may file a Homestead Declaration to protect $500,000 of equity in their property. It must be filed in the Registry of Deeds for the county in which the property is located. This document protects you from creditors or judgments against you in the event that you are sued. It does not, however, protect you against existing mortgages, long-term care claims for Medicaid payments by the Division of Medical Assistance, or existing claims or lawsuits.
The new bankruptcy law signed into effect on April 20, 2005 by President Bush may affect the equity in a debtor’s home. Substantial concern has been raised with regard to the ability of a debtor to protect his or her residence. Under present Massachusetts law, debtors can elect to use the Massachusetts Homestead Exemption to protect $500,000 of equity from creditors, either in a bankruptcy or non-bankruptcy situation. Under the present law, and effective immediately from the date the law was signed by President Bush, that figure has been reduced to a maximum of $125,000 in many situations. The ability to increase the $125,000 amount will be dependent upon the length of time that the debtor has owned the home, how long he or she has lived within the state and the source of the funds used to purchase the residence. This is a major change from the former law protecting residential property from loss when faced with financial difficulties.