ASK THE RETIREMENT CONCIERGE: CAN YOU CHANGE YOUR WILL YOURSELF?

Printer-friendly versionPrinter-friendly version Share this

 

By Sharon Ann Hamilton

Dear Retirement Concierge,

I am retired and fortunately have adequate resources. I just don’t believe in spending money if I don’t have to and it is not hard because I have chosen to live a simple life for many years now. I do have my estate documents in order: trust, will, health care directive, and power of attorney for financial matters should I be unable to act for myself. Here is the situation: I want to make a couple of small changes in beneficiary recipients. Someone told me I could just handwrite a codicil and put in in my trust documents. Is that true? Attorneys are pricy these days and if I can do it myself without risk, I will.

Sigh – Pennywise!

Dear Pennywise,

October 25, 2014 (San Diego's East County) - You are wise to choose a simple life and to be frugal with your money.  Most of the time not spending is a good idea. However in the case of making changes in your estate documents, we need to grasp the rest of the saying, “Penny wise, pound foolish”. Robert Burton, [English Scholar, author 1577-1640] wanted to show how trying to save money could be very costly in the long run. A wrong decision could disastrous for your family down the line.

A little clarification of terminology–we amend a trust and/or add a codicil to a will. Thinking ‘it is just a simple change anyway so why shouldn’t I do it myself and save money‘ is natural but misguided in this matter. Research sums up attorney observations:

  • Doing it yourself will likely make more money for attorneys in the long run to fix the problems resulting from your unintended goofs.
  • Harming your family may be your unfortunate result. Handwritten documents and changes are the basis for many lawsuits amongst family members and other beneficiaries.
  • Crossing out someone’s name is not a way to disinherit a person in a will even if signed and dated on the document. Cory V. Toscano 5/6/13 – Ca Court of Appeals – so no handwritten changes if you want them to stick. In addition the Court ruled that handwritten changes were NOT protected by a no contest clause.
  • Handwriting a codicil to your will or an amendment to your trust may be valid but it is the riskiest action you can take.
  • Ruling in California - heirs and beneficiaries are entitled to a complete copy of the “Terms of the Trust” – your trust and your amendments. So if you strike off your son’s name because he took up with a floozy, then added it back when he fell in love and married a ‘nice’ girl, years later this information would be available to the heirs [possibly the nice girl who is now your daughter-in-law, your grandchildren, etc.

Think about these questions as well. What if your handwritten instructions conflict with the original documents? What if you could prevent a family world war by making your changes with an attorney’s help? What if a beneficiary feels wrongfully treated in your handwritten directions?  What if two people interpret your words to mean something different from your intentions? Everyone then goes to court incurring hefty fees.  Ambrose Bierce, American journalist and satirist said it well. “Lawsuit: a machine which you go into as a pig and come out of as a sausage.”

We do not want to hear this but pay attention anyway!  Spend a few bucks today to have your trust, will and other documents properly changed. If uncertain about your attorney, interview others. As trusted advisors our attorneys must help us understand the documents we sign. Do you know that amending trusts are traps for the inexperienced because of complicated statutes and procedures? Our attorney knows how to help us think ahead. Do you know that too many amendments make the intentions hard to decipher and prepare the way for disputes? If a previous trust is entirely replace by a restated trust, then the previous trust is NOT available for heirs and beneficiaries to read helping keep peace in the family. Working with a professional attorney and staff means they will be available as witnesses to your true intentions and mental capacity if someone challenges the validity of the amendment.

In brief, spend the money now and be fondly remembered when your estate serves your family for generations ahead!

The Retirement Concierge offers Estate Settlement Coordination assistance as a team member with attorneys, trustees, and fiduciaries. www.estatesettlementcoordinators.com.  We do not offer legal, financial or tax advice. We also wrote A 10-Step Action plan for Defining Your Mission helping Boomers on the verge of retirement to plan, make and manage life transitions by guiding them through a systematic process of discovery and re-creation where they write their own rules, make their own plans and reinvent their own lives. www.TheRetirementConcierge.com. 619-818-8575).