7 Important Concepts Likely Missed In Your DIY Estate Plan

October 10, 2010
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I enjoyed this recent blog post by Massachusetts attorney Danielle G. Van Ess, which compellingly illustrates the rationale for delegating certain work, including estate planning, to trained professionals rather than using do-it-yourself methods.

The cynical reader may find such advice yet another self-serving admonition by lawyers.  Well, not so fast.  Here, we discuss seven somewhat arcane estate planning concepts that could very well have importance in your particular situation.  However, these ideas are not typically raised by our non-lawyer friends or software because they relate to the effects of your unsupported answers while “filling in the blanks” and potential actions afterwards:

Ademption By Extinction – If at your death, you no longer own an asset that you specifically give to another in your will, the “ademption by extinction” doctrine directs that the gift fails, and the intended beneficiary gets nothing (rather than, say, the cash value of such a gift).

Ambiguity, Latent – A “latent ambiguity” is one not apparent in the wording of the will, but then becomes apparent when applying the will to the real facts.  For instance, if someone leaves “my property on 123 Main Street to John Doe” but actually owned 132 Main Street, outside evidence will be allowed to show the accurate ownership.

Ambiguity, Patent – As we briefly referenced in our Beatles post, patent ambiguities in a will are those that are apparent in the wording of the will.  An example would be where someone leaves one-third of his assets to “each of my children”, and then lists 4 children in his will.  In general, courts will not allow outside evidence to resolve latent ambiguities – the court would likely assume that the decedent meant to leave one-quarter to each.

Augmented Estate – In many states, if a decedent disinherits his spouse, the surviving spouse can claim an “elective share” (generally one-third) of the “augmented estate” within a certain time after the death.  The augmented estate not only includes the decedent’s actual estate at death, but depending on the state, can also include certain gifts made to the surviving spouse or to third parties during the marriage.

Dependent Relevant Revocation – When someone decides to create a new will, he will sometimes revoke the older one first.  If the new will is never made or is found invalid, under “dependent relevant revocation” some states will allow the older one to be admitted as if it were never revoked.  However, a more common requirement is to have the original “revived” if possible, through new signatures, witnessing, etc.

In Terrorem Clause – Basically, this is a clause which says that a beneficiary who contests the will must forfeit his or her share.  Most states find these unenforceable if there is a valid cause to contest, but Virginia does enforce them on a case-by-case basis.

Lapse – Under old English law, if a beneficiary died before the testator, the gift listed in the will failed and went to other beneficiaries.  Under most states’ “anti-lapse statutes”, the gift instead goes to the beneficiaries’ children or other descendants, unless otherwise stated in the will.

In conclusion, the foregoing is meant to illustrate the tension between theory and practice. DIY products raise concern due to their present-orientation, in that they are designed to  work on the day of their execution.  However, beneficial interaction with an estate attorney will yield documents that are also future-oriented, i.e. ones that consider the practical unanticipated possibilities not contemplated by the former, such as the seven discussed above.

Please think carefully about this!

 7 Important Concepts Likely Missed In Your DIY Estate Plan
 7 Important Concepts Likely Missed In Your DIY Estate Plan


Scott R. Zucker, Esq. is the owner of The Zucker Law Firm PLLC, located just outside the Capital Beltway in Annandale, within five miles of the City of Fairfax, the county seat of beautiful Fairfax County, Virginia. The firm focuses mainly on estate planning services for Virginia, Maryland and Pennsylvania clientele, and seeks to do so in an affordable and approachable way. People interested in learning more can contact Scott by phone or email.

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