Sunday, January 3, 2016
Recent friend adds complexity to changes being made to a will
Posted by Lynne Butler
My will is drafted, but now both adult children have estranged themselves from me, their mother. Is it possible to draft a codicil to adjust who inherits to my grandchildren? A young man I know and trust has agreed to be Executor of my will, power of attorney and living will. My son indicated he does not want next of kin status, so, since he no longer wants an association with me, am I able to adjust as well by codicil?
There's a lot to be covered here, but let me start with the issue of whether a codicil is the appropriate way for you to make changes. Actually, it sounds as if you want a whole new will. The codicil was designed in part to be a labour-saving device back in the days when wills had to be written out by hand, or later type-written. The idea was to keep - and affirm - the contents of an existing will while making a small change.
You are not talking about a small change; you're talking about changing your executor, removing beneficiaries, adding beneficiaries, and adding additional clauses. In other words, you're keeping pretty much nothing about the original will.
Perhaps you've heard that making a codicil is cheaper than making a whole new will. Perhaps it is, when it's used only to make a small change, but in your case there is just as much work as creating a whole new will. Also, because wills are made on computers these days, there is no labour-saving component to a codicil in most cases anymore.
Now let's talk about these changes you want to make. Yes, you can change your beneficiaries from your children to your grandchildren. You are not obligated to leave anything to your adult children who are not dependent on you. While normally it's expected that parents will leave their estates to their children, you have what seems to be a good reason to exclude your children.
I'll be frank when I say that the existence of the young man you mention rings my warning bells. If he is a nephew or other relative, that's somewhat better. Or perhaps he is a young professional associated with a law firm or accounting firm with whom you've had a long working relationship. Otherwise, I have to say that a young person willing to take on all of that work for no return is suspicious. Call me cynical (you wouldn't be the first) but I implore you to think long and carefully before handing over any legal authority to anyone, particularly someone who is new to your life. I suspect that this young man may even be the source of the friction you have with your children.
Please don't take offense at this. My practice, and that of thousands of other lawyers, has seen many seniors who have been duped out of everything they own by a helpful young person. Each and every one of them trusted someone implicitly and ended up with nothing. When you give someone authority under your Power of Attorney, you're giving them access to everything you own. I don't know your financial situation, but have you considered using a trust company? At least with a trust company you'd be protected by all of the bank regulations and trust laws.
The fact that you're seeking out information is great, as I think you know your situation is not simple. Please do not under any circumstances prepare your own documents. You need to sit down with a lawyer whose understanding of wills and estates law goes very deep, and who will take the time to talk through all of your choices. Shop around for a lawyer who specializes in wills, if there is one near you. If not, try to find one who does a lot of work in this area of law. You don't want the guy who does two or three wills a year; you need solid advice.