DIY Estate Planning Mistake #2: Choosing the Wrong Witnesses
Anyone can download templates for the most common estate planning documents. You fill them out and get them signed. What could be easier? Unfortunately, not everyone who goes this route will end up with documents that work as intended. The people who will most likely discover these errors are the family members left to mop up the mess created by these mistakes.
Taking a do-it-yourself approach can lead to trouble, especially with Wills. If you don’t manage the signing process correctly, your entire Will could be ruled invalid after you die. One of the most common mistakes is not having a self-proving affidavit to affirm that you were of sound mind when you created the Will. Attorney Hailey Brock talks about the importance of the self-proving affidavit in this article. Another problem involves not having the right witnesses.
What happens if you make these mistakes, and they can’t be rectified? Well, it isn’t pretty. Your Will is ruled invalid. It’s like you don’t have a Will at all. Your assets wind up passing according to the laws of intestacy of the state where you reside when you pass away.
What are the rules around signing a Last Will and Testament in Georgia?
First, you must have two witnesses to the signing. Technically speaking, none of the witnesses needs to be a Notary for the will to be valid, but there’s a catch. If your will includes a self-proving affidavit, the self-proving affidavit must be signed by a notary in addition to the two other witnesses.
Second, none of the witnesses can be people who stand to inherit under the Will.
There’s a similar rule about who can serve as witness to the signing of other estate planning documents. A witness to the signing of a Power of Attorney cannot be a named agent in the Power of Attorney. A witness to the signing of an Advance Directive cannot be someone involved with your care, such as a professional or family caregiver, or a nurse.
What happens if you choose the wrong witnesses? You guessed it: your documents are invalid.
You might be wondering who catches these mistakes. Any astute attorney or probate judge should see the problems with your documents right away.
Here’s an example. You created a financial Power of Attorney using a form you downloaded from the internet. You found two people to serve as witnesses when you signed that document. One of the witnesses was your son, whom you have named as your agent. Let’s say you later become incapacitated and your son steps in to manage your affairs. Let’s say he needs to transfer your home to an irrevocable trust to help you qualify for Medicaid to pay for long-term care you will need in the future. As your agent, your son will need to sign the deed on your behalf to complete the transfer. A sharp attorney will always check to confirm that the agent listed on the Power of Attorney document wasn't one of the witnesses to the signing. If the agent was also a witness, that invalidates the Power of Attorney. Without a valid Power of Attorney, the son can’t transfer your property unless you have the capacity to create a new Power of Attorney that has the right witnesses. If you don’t have that capacity, then your family will need to petition the court for a conservatorship so they can manage your property and finances, and without a valid Advance Directive for Healthcare, they will have to seek a guardianship so they can make decisions about your care and where you will live. Both processes are time-consuming, costly, and open to public scrutiny.
These are just a few of the many land mines you can step on if you attempt to create your own estate planning documents. There are many more mistakes you can make if you try to go it alone.
Fortunately, Kimbrough Law can help you avoid every mistake. Give us a call at 706.850.6910 to schedule your confidential consultation.