You Won't Rest in Peace if Your Will is Drafted Incorrectly

If the language in my will doesn’t match my intentions, will my assets be distributed in an manner that’s against my wishes?

For some people, the idea of making a will is so unsettling that it actually prevents them from having one created. Yet once the reluctant ones get their affairs in order, they often experience great peace of mind knowing they’ve taken care of their loves ones.

Planning your estate forces you to face your own mortality and make some difficult decisions. Depending on your particular family and financial situation, some of these decisions may include how to distribute your assets, who to select as guardians of minor children, and who to name as trustees of trusts created for the benefit of your beneficiaries. And that’s just the tip of the iceberg.

Experienced estate planning attorneys understand Medicaid and know what’s required in order to comply with regulations involving look-back periods, income caps, transfer penalties and waiting periods. Through strategic divestment planning s/he may be able to help you qualify for Medicaid so that your long-term care is covered while preserving assets for your loved ones. Failure to plan—or mistakes in planning-- your estate can have devastating financial consequences for yourself and your loved ones during your lifetime and/or after your death.

A recent ground-breaking decision has caught the attention of estate-planning attorneys across America. The 2016 Virginia case, Thorsen v. Richmond Society For The Prevention Of Cruelty to Animals, is a wake-up call for estate planning attorneys in states where third party beneficiary contracts are recognized.

In Thorsen, the attorney-draftsman of a will inadvertently used language that did not accurately reflect the decedent’s intended wishes as to how her property should be distributed. The decedent wanted her mother to inherit everything, but if her mother died first, then everything was to pass to an animal charity. Mom died first, but due to an error in drafting language, only her $70,000 in tangible personal property passed to the charity and her remaining $675,000 in real property went to other family members—in direct contradiction of the decedent’s intentions.

Realizing his drafting mistake after her death and to his credit, the attorney-draftsman petitioned the court to correct the error in the decedent’s will prior to the distribution of assets, but the petition was denied. When the intended third party beneficiary animal charity got short-changed in its inheritance due to the erroneous language, it sued the attorney-draftsman and prevailed, in part because the attorney-draftsman’s admissions in his petition were used against him.

This case is an unfortunate example of what can happen when mistakes are made in drafting estate plans. That’s why it’s important to trust your estate plan to a law firm that specializes in the many different aspects of Estate Planning and Elder Law.

The Round Rock, Texas law firm of Gerald Winters, P.C.  has extensive estate planning experience and skill in the complex field of Medicaid eligibility law. Security for your family’s future and peace of mind for your golden years may be only a phone call away. Call 512-270-3807 today for a consultation.

Posted in Wills

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