Many times wills do absolutely nothing. Consider this sad, true story, modified only slightly:
I received a call from a client a little while back. We’ll call her Suzy. Her father had died four years ago. He left a Will that said, in essence, I leave everything to my wife should she survive, and if not to my two daughters equally. The will was apparently never presented for probate. Mom died a few weeks ago, with no will or trust. She had told the two daughters (Suzy and Sally) and one granddaughter (Amber – Sally’s daughter) the that she wanted all of her money, etc. split three ways. This conversation took place several months ago.
The money is all in one bank account that was titled in Mom’s name along with Suzy and Sally.
To Suzy’s distress I had to inform her that Dad’s Will meant nothing – for several reasons. First, Dad and Mom held everything jointly, and as such all the property, money, etc. became Mom’s sole property instantly at Dad’s death. Even had the will been probated, there would have been nothing to probate, because Wills can only control property held in the decedent’s sole name. Secondly, in Missouri, if you fail to open the Probate Estate within one year of the date of death, the Will becomes meaningless. This a very hard and fast rule. Finally, the bank account instantly became the property of Suzy and Sally equally at the time of Mom’s death.
Suzy wanted the money to be split evenly because she felt that was Dad’s wishes. That’s what will happen, unless Sally goes to the bank and pulls out all the money, which she can likely do.
Amber will not receive any money unless Sally does go take the money out of the bank.
Nobody is happy, everybody is confused, and somebody is going to be mad, and the family may be divided forever.
Morals of the Story:
- Wills only are effective is presented to probate, and an estate is opened within the appropriate time period (One year in Missouri).
- Wills only transfer ownership of property, money, or other assets that are in the decedent’s name, and ONLY the decedent’s name.
- Making oral statements as to one’s wishes are generally legally ineffective.
- Using joint ownership to transfer property upon death can cause many, many problems. If everybody dies in the order we think, and everybody agrees and is “nice”, then things might work out. It only takes one little bug to really mess things up.