Wills: The Execution Conference is Not a Seminar on the Death Penalty

From the book, Death is No Excuse

When you get right down to it, there isn’t much to a will.

It needs to be in writing, signed by the Testator (that’s you), and witnessed by at least two disinterested people (folks who don’t get anything under the will). The witnesses need to see you sign it and then sign it in your presence, at your invitation or direction. 

You can write it on anything: There’s a famous case where a farmer wrote his will on the side of a live cow, which obviously complicates submitting that will to the probate court, but yes, that’s still a valid will. You can write it with anything: A recent case involves a wise-guy testator who wrote the will in blood, and no, it doesn’t need to be your blood, just in case you have somebody else’s blood handy. It doesn’t need to be typed or even bound or stapled, although without page numbers an unbound will causes problems, but again, if the Court can sort it out, it’s still a valid will.

Technically, there doesn’t need to be much of you, either, to make a will. You need more mental skills and abilities to buy a used car than you need to be able to validly make your will. The standard loosely translates to, “Hey, you O.K. in there? Got any idea who these people are that you’re naming in that will?” Referred to generally as “Knowing the natural objects of your bounty and the testamentary nature of the transaction,” you probably need to have more of your marbles to choose the color of that used car. There’s a reason this capacity standard is so low: Most people are old when they sign their wills, so if you set the mental with-it standard too high, too many people would flunk.

Right about now, you’re thinking, If this is one of the most important moves of your life, shouldn’t you need to be more glued together to pull it off? 

Well, no.

These testation decisions are pretty basic stuff:

  • Do I want to avoid taxes where possible? (Yes, always).
  • Do I want my spouse, otherwise my kids, to get my personal assets like cars and furnishings? (Almost always, yes).
  • Do I want to hold up property in trust if the kids are young? (Usually).
  • Do I want to split the booty between my favorite charities or my family and my spouse’s family if nobody else is around? (Most times).

People with more complicated plans and more valuable stuff usually use trusts, and in most states, if the trust can be changed until your death, the same loosey-goosey mental capacity standards apply to signing one of those. 

The key is that, with a lawyer involved, the courts will assume you communicated with the attorney and the stuff you wanted is in the will. Nobody is fooling anybody about the technical provisions in the fine print: Just like those nasty joint-tenancy signature cards, nobody thinks you actually read, much less understood, that part of the document. The courts who need to enforce wills are just willing to figure you blessed those provisions during the back and forth between you and your attorney. That’s the reason many states have rules prohibiting anybody but a lawyer from drafting wills and trusts—because the courts understand there’s complex material in there that only a lawyer should explain to you and decide whether or not to include or exclude—not because it’s a nasty conspiracy to make you spend money on lawyers. 

So, the process of setting up and executing your will isn’t too complicated, it’s really not that expensive, hopefully by now I’ve convinced you to go to a lawyer and do it, so what could possibly go wrong?

Turns out, lots, and it’s often the silliest of screw-ups.

There’s a reason your lawyer’s office has no drive-thru: These things take time, usually two or three meetings between you and your lawyer, and then some lawyer-thinking and drafting time. After these on-the-clock get-togethers with your lawyer, like most folks, you’re thinking, “How much is this costing me?” And inevitably, when the lawyer finishes your will and maybe your trust, you say, “Hey, just send it out here and I’ll sign it up at home.” 

Bad idea. Remember the stuff about witnesses? It’s easier to screw up than you’d think. You and the witnesses need to sign in plain sight of each other, and that means same room, same time, same “line of sight”. Lawyers call it “An Execution Conference,” and no, that’s not an international summit on the death penalty; it’s your lawyer supervising the signing of the documents with you in his or her office. That way, you don’t get any of the following, all of which I’ve seen, sometimes more than once:

  • “I brought it to the laundromat after I signed it and got a couple guys there to sign…..”
  • “He was in bed in the other room, scribbling on the will in there, and he yelled at me to come get it and go get somebody to sign as a witness….”
  • “We got a couple of folks in the E.R. to sign while we were waiting, but then one of the guys died….”
  • “I just had my kids sign it for me…..”
  • “Don’t know who they were. We were at the bank and we grabbed a couple that were waiting in line and forgot to ask them where they live….”

All of these creative approaches threaten the validity of the will—You can’t have beneficiaries like your kids sign, you can’t break up the signing ceremony so the signatures aren’t simultaneous, and if you can’t find the witnesses at the time of probate, it could be a problem, particularly if there’s a will contest.

I’ve seen more wills upended by mishandled execution, just to save a few bucks by not going to the lawyer’s office to sign. And I once had a retired probate judge tell me the only witness she cared about in a will contest was the drafting lawyer, who then, “….Put the will in front of the testator, his client, explained it one last time, and made sure the guy was OK when he signed….”  Can’t have that if you do it yourself at the laundromat. 

And then, there’s this:


The True Story of the Will and the Exploding Cookie Jar 

Nobody expects their cookie jar to explode like a hand grenade, but that’s not a good reason to store your will in there. The same is true of your underwear drawer, the space between the Corn- flakes and Wheaties on your kitchen shelf or that secret space under the closet floor where you hide a wad of currency and a roll of quarters, anticipating the apocalypse.

Take the case of Lula, who lived quietly in a two-flat while renting out the two-flat next door, both properties that had been in her family for eighty years. The neighborhood had been old and kind of worn down, so at first the places weren’t worth much. But then, the neighborhood began to improve, and suddenly, Lula was a millionaire.

Lula had the sense to go to a lawyer and do a will, one that really mattered because she was dividing stuff unevenly between her kids, holding the share for her wayward daughter in trust. 

When Lula asked the lawyer where she should store the will, the lawyer inquired about any safe places in her two-flat. After determining Lula lacked the usual suspects—file cabinets, portable safes and strong boxes, the lawyer, with all the brain-power and judgment that comes with two graduate degrees, told Lula, “Some folks keep their wills in the meat drawer in the fridge—it’s fire-proof and will even survive a nuclear explosion,” that latter part being an urban myth that lacks substantiation.

The meat drawer is where the will sat for a few years, until Lula’s daughter Wanda asked about the will’s whereabouts. Wanda was understandably skeptical about the soundness of the meat-tray advice, so she asked her own lawyer, who said, “Don’t keep it in the fridge—what if stuff spoils in there? I tell my clients to keep their wills in the cookie jar. You’ll always be able to find it there.”

By now, you may be wondering why this orgy of bad advice became notorious, and the answer is that a year later, the two flat burned to the ground in a fire that obliterated the cookie jar, Lula and the will. Her lawyer was sorting through the mess, filing insurance claims and trying to get a copy of the carbonized will admitted to probate, and no, the moral of this story, as one of the heirs once pointed out, is not that the will probably would have survived in the fridge. 

The point is, people, get a safe deposit box at your local bank and put the will in there.  Almost every bank has one, and the typical annual rent is forty-five dollars, about what you pay for four beers at your average major-league baseball game. No fridge, no sock drawer, no underwear drawer, and I can’t tell you how many fire-singed, burned-archeological-dig-looking document fragments I’ve pulled out of those supposedly fire-proof, home-safe, metal boxes. Use a major bank, so they don’t terminate your box lease, and don’t put valuable property in there—just documents like your will.

And, tell your lawyer which bank you picked and what box number they gave you. The crack I made  about the space between the Wheaties and the Cornflakes comes straight out of a year’s-long fight over a missing will. The will eventually turned up when they cleaned out the dead guy’s apartment and his kids found it, safely tucked between those cereal boxes, since dead guy apparently liked to take the will down and review it during casual breakfasts. If this is you, you need both a hobby and a safe deposit box, but if I still haven’t convinced you, at least tell your lawyer which cereal selection is your favorite.

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