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Thursday, March 7, 2013

Will and estates myth-busting

From time to time people say things to me that reveal just how many myths and misunderstandings exist regarding wills. It's not really surprising; misinformation is passed on as frequently as real information and is often more interesting. TV and books fictionalize and sensationalize legal situations. And the internet is quite the culprit too, in the sense that pretty much anyone can start a blog, say they're an expert and talk about anything they like.

I thought I'd take a few minutes and "bust" five of the misconceptions that have crossed my path recently.

1.   Myth # 1: Legal documents such as wills can't be photocopied. Sure they can. In fact after someone passes away, his or her will is often photocopied dozens of times so that copies can be given to the beneficiaries, the lawyer, the bank and the land titles registry. Perhaps the grain of truth that led to this myth is the fact that in order to probate a will, the executor must have the original document. So this myth is not so much busted as adjusted; you can't use a photocopy to get probate (except in special circumstances) but you can use a photocopy for every other purpose.

2.  Myth #2: If a will is in a sealed envelope in a safe deposit box, breaking the seal will invalidate the will. Now this doesn't make sense to me at all. If the will is automatically invalidated by opening the envelope, how is the will ever going to be used? Though this does sound like a great scare tactic for keeping nosy people out.

3.  Myth #3: If a husband and wife make wills at the same time and one spouse dies, the other one's will is invalid. Perhaps this myth grew out of the old practice of a husband and wife having only one will document between them, a practice that petered out long before I started doing wills 26 years ago. In any event, it simply isn't true. Each person does his or her own will and each document stands independently of the other. Wills should be set up so that they will work properly regardless of which spouse passes away first, or even if they pass away in a common accident.

4.  Myth #4: There must be a reading of a will after someone dies. Beneficiaries frequently tell me that they think the executor is hiding something because there has been no reading of the will. This was never the law, though it was once a custom, particularly among wealthy families. It's a custom that lives on in novels and movies, though not so much in real life. These days a beneficiary is most likely to receive notice of his or her inheritance by way of a registered letter. Those who are not beneficiaries are simply not involved.

5.  Myth #5: All family members are automatically entitled to see another family member's will. Nope. Wills are private documents, even after the person has passed away. The question I hear more than any other is "how do I get a copy of my mother/father/sibling's will?" Sorry, but if you're not a residuary beneficiary of the will, you don't get a copy and you're not entitled to see it. I'm well aware that this isn't the answer people want, but it's something they will have to live with. This is a general rule of course, and an exception is a person who is not named in the will but who is automatically entitled to support from the will because they're a legal dependent (i.e. spouse, minor child, handicapped adult child) entitled to support under the will. Other court actions sometimes result in a person getting a copy of the will, too.

I hope this brief myth-busting session will enlighten readers a little bit about some of their concerns. I also hope it will encourage executors and beneficiaries alike to keep asking questions, keep seeking out professional help with wills and estates, and to stay as informed as possible.

2 comments:

  1. Does the original will need to be stored unfolded and have no staples?

    ReplyDelete
  2. No. Neither folding nor staples will make any difference at all to the validity of the will.

    Lynne

    ReplyDelete

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