Wills & Estate Planning

[GGG]

Originally Posted by opendoor

A beneficiary could potentially sue. Imagine a single person having a will drafted that leaves 20% of their estate to their brother and 40% to each of their 2 kids. If the lawyer drafting that will made a mistake that made the will invalid, that person would die intestate. That would mean that the estate would be distributed based on the law, normally to the two kids only, leaving the brother with nothing. The brother would then potentially have a claim against the lawyer for his loss due to negligence.

But if the will wasn’t valid how would the brother be able to make a claim? His claim for damages would be based entirely on the will being valid.

Essentially my question is how could the court find he was damaged and find the will wasn’t valid doesn’t one rely on the other?

[Fuzzy14]

Often, damages in estates litigation are the cost of setting things right, rather than one party having experienced a "loss" as a result of an error in the drafting of the will.

Let's say for example, mom gives each of her kids a gift of cash in her will, and then the residue is to go to her friend... Linda.

Drafter screws up, innocent mistake, gets the order mixed up, and the way the final will reads, Linda gets everything and the kids get nothing. Everyone knew what mom's intention was, there are notes to that effect from the drafter's office, but a drafting error results in the above distribution.

Problem is, Linda's a crusty old b-word and says "I'm not agreeing to nothin, the money is mine".

Now the kids get to lawyer up and apply to the court to have the distribution changed so that mom's intent is properly reflected in the estate's distribution. Linda fights back.

Six figures of legal fees later, the Court sets the distribution right, but who pays the legal fees? Linda might have to pay some of them, but it won't be all. Now the kids have spent tens of thousands in unrecovered legal fees to get their inheritance. Queue the claim against the drafter to recover those costs.... hope they're insured!

[MoneyGuy]

Regarding the comments against using the paralegal, I’d bet she’s done more wills over some-25 years than pretty much any lawyer. It’s all she does and she’s really good. She knows her bounds. I’ve send her dozens of clients during my time as an advisor, also family and friends.

[bigtmac19]

I have not read this whole thread yet, but hopefully it is just enforcing the topic of Wills - please please please make a Will, name beneficiaries on your policies and investments and pensions. Do not leave these things for your loved ones to wade through and try to navigate.

I'm in the middle of horrible events right now. My sister died suddenly over a week ago. We were not estranged but not super close. Apparently her work did not have my contact information for emergencies. She had not shown up or contacted them for 5 days, so they called police to do a wellness check at her home. The Police made entry to the home and found her. I later learned it was a sudden heart attack, two 90% blocked coronary arteries. She had never taken care of her health.

My sister was not married, no children, lived alone. When my parents entered long term care, she moved into their house. They didn't take much with them, and my sister still brought most of her stuff into the already cluttered house. I offered several times during the first few years, to help her deal with some of the clutter. She eventually told me to "leave it alone".

We spent all holidays together with my kids, grandkids, etc. She always came to my house for dinners, etc. She has never invited me to the home, I haven't been in there since she moved in about 16 years ago. I always knew it would be cluttered, but in the last few days have come to a horrifying realization of what her life has been.

Aside from what is facing us with dealing with the property, I have no idea of her finances, I am beginning to suspect she has not filed her taxes for many years. I've been gathering piles of unopened mail trying to find out what information I can. I met with a lawyer to get the process started to be appointed as estate trustee without a will, however this is very time consuming, and I may not be able to do anything until I get that paperwork. I have already had to pay for some major expenses, I wasn't prepared for.

I cannot yet grieve my sister, I am so angry at her. On top of that I feel overwhelmingly guilty that she was living like this but never asked for help. I heard from her neighbour she has been sick over the summer, and again, not one phone call.

My only option at this point is to pay a company to clean out the house, and sell it "as is"

I know the house situation is not normal in a situation where someone dies suddenly, but please if you are saying - I should go get a will - please don't put it off any longer.

Make sure all your paperwork is put away where your family can find it, and make sure you dot all the i's and cross all the t's. Don't let this happen to your loved ones.

[opendoor]

Originally Posted by GGG

But if the will wasn’t valid how would the brother be able to make a claim? His claim for damages would be based entirely on the will being valid.

Essentially my question is how could the court find he was damaged and find the will wasn’t valid doesn’t one rely on the other?

The claim would be based on the notion that the will would have been valid had the error not been made. So if the will was invalid due to the testator having dementia or something, then you're probably right. But if the deceased was competent at the time of the will's creation and the lawyer messed up something else like using ineligible witnesses or something, then they may be liable.

And it's not just a question of valid vs. invalid. Someone writing a will can make an error in a valid will that deprives a beneficiary of a share of the estate, and that can create a liability. I mentioned ineligible witnesses above, and that has happened in Canada. A lawyer used a beneficiary's spouse as a witness, which invalidated that gift. The lawyer was found liable for the beneficiary's loss from that error.

[MoneyGuy]

Good to know.

https://www.aarp.org/money/budgeting...your-will.html

[Fuzzy14]

Enduring Powers of Attorney and Personal Directives often get lost in the wills discussion, but they are critical documents in the estate planning process. My clients will often ask if they need to bother with doing them, and the answer is an emphatic yes.

Remember, if you suffer an incapacity, your family members may not be able to manage your financial affairs during your period of incapacity. If you're incapable for a week, that may not be a big deal, but if you suffer a prolonged incapacity, that can have significant consequences.

When evaluating the cost, folks should also consider that if they end up needing an Adult Guardianship or Trusteeship order, that process takes several months to complete and will likely accumulate several thousand dollars in legal fees to complete.

[firebug]

Originally Posted by Fuzzy14

Enduring Powers of Attorney and Personal Directives often get lost in the wills discussion, but they are critical documents in the estate planning process. My clients will often ask if they need to bother with doing them, and the answer is an emphatic yes.

Remember, if you suffer an incapacity, your family members may not be able to manage your financial affairs during your period of incapacity. If you're incapable for a week, that may not be a big deal, but if you suffer a prolonged incapacity, that can have significant consequences.

When evaluating the cost, folks should also consider that if they end up needing an Adult Guardianship or Trusteeship order, that process takes several months to complete and will likely accumulate several thousand dollars in legal fees to complete.

Very much this.

I've stopped our firm from quoting standalone wills unless the client can demonstrate to me they already have valid PDs and EPoAs in place.

[Nancy]

nm

[troutman]

Originally Posted by Fuzzy14

When evaluating the cost, folks should also consider that if they end up needing an Adult Guardianship or Trusteeship order, that process takes several months to complete and will likely accumulate several thousand dollars in legal fees to complete.

And you might be quite shocked who the court appoints to be your trustee and guardian.

[Fuzzy14]

https://www.ctvnews.ca/business/what...rney-1.7155625

Having an Enduring Power of Attorney is very important. Picking the right person, and that person knowing what they're getting into, is equally important.

[I-Hate-Hulse]

I recall that it's non unheard of to put something the will that compensates the Executor for their time and pain to administer the will.

Whats a generally accepted amount for this? I know members of the family will be all over this so am hoping to know in advance what a nominal fee is for this.

[WideReceiver]

Originally Posted by I-Hate-Hulse

I recall that it's non unheard of to put something the will that compensates the Executor for their time and pain to administer the will.

Whats a generally accepted amount for this? I know members of the family will be all over this so am hoping to know in advance what a nominal fee is for this.

The executor has the discretion to charge a fee.

[Fuzzy14]

The executor is entitled to reasonable compensation, and the court has referenced the following fee guideline with approval:

3% – 5% of the first $250,000 of estate capital;
2% – 4% of the next $250,000 of estate capital; and
0.5% – 3% of all remaining estate capital.