What is the “Worst Case,” Anyway?

You’ve done it all - you’ve considered your assets, your family, your legacy.

You got it on paper. Or maybe you paid an attorney to help you get it on paper, to cross T’s and dot I’s.

You’ve carefully considered the issues which may arise from your passing, you’ve contemplated possible friction in your family, and you’ve done everything in your power to prevent this from occurring after you’ve passed.

Signed. Witnessed. Safely stored. You’ve washed your hands of this: your wishes are memorialized.

That was 5 years ago. What can go wrong?

Here’s what happens when your will goes to probate: your nominated executor submits your will to the court via a petition, so the court can approve that yes, these were your wishes, and your estate should be distributed as you’ve designated in your will. Every one of your heirs get “notice” of this petition, whether these heirs are beneficiaries or not.

Chances are, if you did not divide your estate evenly among your heirs, one of them may object to the petition of your will.

More and more, we see that the grounds for objection by a disappointed heir is that the will submitted to the court is not the most recent will. In most states, the law is that once a new will is executed, any previous wills are revoked. To the benefit of the disgruntled heir, that would mean the estate may be distributed as if a will never existed.

What happens to all of the work you put in? All of the thought, the consideration?

The lawyer’s answer - it depends. At the very least, there will be a delay in distributing your estate, because nothing can happen until the objection is resolved. Attorneys may get involved to represent the interests of the heirs. Costs will increase, and may be taken from your Estate. Tensions will rise between your heirs, despite your efforts to curb it in the first place. The worst case? Your efforts go unappreciated; your estate is distributed without regard for your will.

So what was the point in making a will in the first place?

Never fear: you did the right thing by making a will in the first place, and triple checking that the will is valid in your state is key. But you can prevent ensuing litigation, still. 

An “Affirmation Codicil” is a unique opportunity to attest that, while the times have changed, your decision as to how you want to distribute your estate has not. By stating that, even five years later, you still want your estate to be distributed as you had written it in that will, you are ultimately re-executing your will, updating the most-recent version to the date you sign the Affirmation Codicil. One simple document can save thousands of dollars of past estate planning, and more still in future litigation.

We recommend that you execute an Affirmation Codicil every 3-5 years. This update will serve to display to the Court that, yes, your wishes have not changed, and you’ve recently reconsidered those wishes to come to this conclusion. The small gesture to ensure the safety of your legacy and the respect of your decisions can be the peace of mind you hoped for when you initially executed your will.