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  1. #1
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    Default Is a Lawyer Responsible to Verify Assets When Writing a Will

    My question involves estate proceedings in the state of: Wisconsin

    I am an estate administrator, and have many questions. Here is number one: When drafting a will, with time billed for consultation,
    would the attorney not logically ask whether there are enough assets to support the amounts left to heirs?

    Here is the situation in brief: Gentleman leaves $X to A, $5000X to B, hard assets but no $ to C, and residue to charities in the will. Extremely generous. But almost all liquid assets are in previously set up POD and beneficiary accounts in the names of B and C. So, there is nowhere near enough left in the probate estate to cover the amounts bequeathed in the will. The gentleman must have assumed the will trumped anything else.

  2. #2
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    Nov 2013
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    Default Re: Attorney Responsibility in the Writing of a Will

    So someone died and named you executor/executrix, right?

    An attorney that drafts a will is not concerned with what assets are or will be available at the time of death. If there are specific bequeaths to heirs then those should be honored by the executor if possible.

    The estate is really one big pool of money including all the assets be they real estate, personal property, or stocks or bonds or cash. It is the responsibility of the executor to first pay all the debts of the estate. Then to honor the bequeaths of the deceased and what is left after that. If there is not sufficient assets to honor all bequeaths then you apportion what is available.

    The POD accounts are none of your concern. They are not part of the estate or part of the probate no matter how much the beneficiary receives.

  3. #3
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    Default Re: Attorney Responsibility in the Writing of a Will

    Yes, I was named and have been appointed by the court, and do understand that responsibility. But the conflict in the will's intentions and previous designations is monumental, and easily avoided with a few inquiries. I guess one may just as well write a will on a sheet of paper, have it notarized for free and give it to the nominated executor, and save a few hundred dollars in attorney's fees.

  4. #4
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    Default Re: Attorney Responsibility in the Writing of a Will

    Yes a person can do that and it is perfectly legal and will hold up in probate if not contested.

    So is your concern that you think the attorney the drafted will did or did not do something they should have? What does that have to do with settling the estate as it is?

  5. #5
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    Default Re: Attorney Responsibility in the Writing of a Will

    Quote Quoting partlycloudy
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    Yes, I was named and have been appointed by the court, and do understand that responsibility. But the conflict in the will's intentions and previous designations is monumental, and easily avoided with a few inquiries. I guess one may just as well write a will on a sheet of paper, have it notarized for free and give it to the nominated executor, and save a few hundred dollars in attorney's fees.
    And one could have $100,000 in the bank and write a will bequeathing that $100,000 to someone - and then spend all the money before dying. So even if the lawyer verified the assets at will-writing time, there's no guarantee that what was verified will still exist at dying time. (In other words, why bother verifying?)

  6. #6
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    Oct 2014
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    Default Re: Is a Lawyer Responsible to Verify Assets When Writing a Will

    Quote Quoting partlycloudy
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    I am an estate administrator, and have many questions. Here is number one: When drafting a will, with time billed for consultation,
    would the attorney not logically ask whether there are enough assets to support the amounts left to heirs?
    Depends on what the attorney was hired by the client to do. If the attorney was hired simply to draft a will to the clients specifications then the answer is no, the attorney would not ask that since it doesn’t matter for doing what the client has retained the lawyer to do. If the job the lawyer was hired to do was instead to design an entire estate plan for the client then the lawyer would certainly ask for information about all of the client’s finances in order to determine what plan might best suit the client.

    Note, though, that even if the client had the money at the time the will was written things can change and by the time the client dies it may be that the financial picture has changed a lot. That client should have come in to get the estate plan updated (or at least get the will updated) but lots of people are not that on top of keeping up with their estate plans.

  7. #7
    Join Date
    Jan 2006
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    38,867

    Default Re: Is a Lawyer Responsible to Verify Assets When Writing a Will

    Quote Quoting partlycloudy
    View Post
    My question involves estate proceedings in the state of: Wisconsin

    I am an estate administrator, and have many questions. Here is number one: When drafting a will, with time billed for consultation,
    would the attorney not logically ask whether there are enough assets to support the amounts left to heirs?

    Here is the situation in brief: Gentleman leaves $X to A, $5000X to B, hard assets but no $ to C, and residue to charities in the will. Extremely generous. But almost all liquid assets are in previously set up POD and beneficiary accounts in the names of B and C. So, there is nowhere near enough left in the probate estate to cover the amounts bequeathed in the will. The gentleman must have assumed the will trumped anything else.
    in my will I'm leaving one billion dollars to each of my children. I'm pretty sure my estates value at the time of my death will be a couple bucks short of being able to purchase a Starbucks venti double half caff latte though. Leaving the money is meaningless if I do not have the money. A will is simply a bunch of wishes that, if possible, are fulfilled after one dies. A persons fianancial status and list of possessions is not static. It changes as time goes on. If the wish list can be fulfilled with what is left at the end, great. If not, the admin distributes what they can following the directives in the will and calls it a day.


    Btw; in your situation gentleman c might be the only one getting what he was supposed to. Specific gifts are not able be utilized to fulfill other gifting in the will. They go to whomever they were designated to go to (if they still exist and do not need to be liquidated to fulfill debts of the estate). The guys receiving money get what is specified only if there is enough cash and remaining assets after specific gifts are distributed and creditors are paid.

  8. #8
    Join Date
    Oct 2016
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    11

    Default Re: Is a Lawyer Responsible to Verify Assets When Writing a Will

    Thank you all. Many of the CD's are renewals of those in place 20 years ago; the brokerage accounts are almost as old. The annuities date as far back as 1952, with long deceased parents names as beneficiaries. The will was outlined a year and a half ago, and signed the end of last year. There are no debts or liens, save for the final expenses and the estate attorney fees.

    Shoot me if you think I deserve it for thinking maybe an attorney should hesitate to draft a will leaving a billion dollars to a kid without a bit of follow up as to assets, lol.

    I am also "C" in this equation. Thank you to jk. I do not want to sell or finance the Real Estate, but believed I may have had to because even with the investments POD in my name, there is not enough to buy out the $ amount to A and B. B is also a POD beneficiary of many investments, but, as noted, they are not to be probated.

  9. #9
    Join Date
    Oct 2014
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    7,914

    Default Re: Is a Lawyer Responsible to Verify Assets When Writing a Will

    Quote Quoting partlycloudy
    View Post
    Shoot me if you think I deserve it for thinking maybe an attorney should hesitate to draft a will leaving a billion dollars to a kid without a bit of follow up as to assets, lol.
    Again, it depends a great deal what the client hired the attorney to do. Drafting a will to leave a kid a billion dollars when the client does not have a billion dollars is not something that would be malpractice since it could still very well be what the client wanted. I advise clients when I draft a will to set out a priority of payment in the will in case all bequests cannot be funded. So, let’s say client wants to give his oldest child a billion dollars if he has it and if he doesn't he wants that kid to get what he does have. Then writing a will that specifies the kid gets a billion dollars and is the first priority for payment will do just that. Then the kid will get whatever the client has at death unless it happens to be more than one billion dollars, in which case the kid gets a billion and the next person in priority gets the next gift. It doesn’t matter then what money the client has because the will will work the way he wants regardless.

  10. #10
    Join Date
    Jan 2006
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    38,867

    Default Re: Is a Lawyer Responsible to Verify Assets When Writing a Will

    Quote Quoting partlycloudy
    View Post
    Thank you all. Many of the CD's are renewals of those in place 20 years ago; the brokerage accounts are almost as old. The annuities date as far back as 1952, with long deceased parents names as beneficiaries. The will was outlined a year and a half ago, and signed the end of last year. There are no debts or liens, save for the final expenses and the estate attorney fees.

    Shoot me if you think I deserve it for thinking maybe an attorney should hesitate to draft a will leaving a billion dollars to a kid without a bit of follow up as to assets, lol.

    I am also "C" in this equation. Thank you to jk. I do not want to sell or finance the Real Estate, but believed I may have had to because even with the investments POD in my name, there is not enough to buy out the $ amount to A and B. B is also a POD beneficiary of many investments, but, as noted, they are not to be probated.
    Long deceased parents named as beneficiaries? Were there contingent beneficiaries? If not, you need to read the documents involved with the annuities. The benefits may have reverted to the estate if there is no living beneficiary or contingent beneficiaries.

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