Elder Law Report

Old Wills, New Nightmares

Greg McIntyre, J.D., M.B.A.

Imagine sorting a loved one’s papers and finding ten different wills—each telling a slightly different story about who gets what. That’s how family peace turns into a courtroom drama. We pull back the curtain on why outdated wills and mismatched beneficiary forms can derail even the most well‑meaning plans and how a few practical moves can keep your wishes clear, enforceable, and drama‑free.

We break down the big three drivers of conflict—changes in law, changes in family, and changes in assets—and show how to keep everything aligned. Jane Dearwester joins Greg McIntyre to explain when a simple codicil is enough, when it’s smarter to draft a new will and revoke all prior versions, and why physically destroying old documents prevents “ghost wills” from resurfacing. We get specific about formalities too: two witnesses, proper execution, and a self‑proving affidavit so your family isn’t hunting down witnesses years later. From there, we dig into the pitfalls of DIY and handwritten add‑ons that courts routinely reject, and the quiet power of tools like revocable living trusts and Lady Bird deeds to pass property outside probate with speed and clarity.

You’ll hear a real‑world example of a trust that secures a minor child’s future, the role of a capable trustee, and how funding the trust turns paperwork into protection. If you want fewer delays, fewer surprises, and fewer legal bills, this guide gives you a clean checklist: update after life changes, align beneficiary designations with your will, revoke and destroy outdated versions, and consider probate‑avoidance strategies that fit your situation. Subscribe, share this with someone who needs a nudge to update their plan, and leave a quick review telling us the one step you’ll take this week to keep your legacy out of court and in your family’s hands.

Greg McIntyre:

We're heading into the spooky season. And in that spirit, we're going to talk about the haunting of old wills. How old wills can haunt an individual even from the grave? Sounds a little morbid, sounds a little spooky, but here to join me is attorney Jane Dearwester, who's not spooky at all.

Jane Dearwester:

Hello. But but right but we do sit here in Hendersonville right next door to Transylvania Academy.

Greg McIntyre:

So which I know for what it is where North Carolina Dracula lives.

Jane Dearwester:

That's right.

Greg McIntyre:

Yes, it is. So the haunting of old wills. Okay, why could an old will be a problem? Why could an aged will, a will I drafted a long time ago, come back to haunt me if I die? And why do I care? Because I'm dead. Well, because I care about how I want to give out my assets, my property. I've taken the time to think about my loved ones, my family, set some goals, meet with an attorney, draft a will stating who who gets what. And then could that be a problem in the future? Jane, updating is important here because there's changes in the law. There are changes in family, and there are changes in assets. There can be a change in other players, like the executor, the person who is going to be in charge of passing the assets, executing your instructions in the will. What is the importance of updating an old will?

Jane Dearwester:

There are so many issues that I see doing litigation uh across the state with old wills and documents in general that have not been updated. A lot of those we see between spouses. So uh marriages come and go. Yeah. So if you don't update your will after you get divorced, there could be some issues there. There could be some confusion. There's some state laws that protect you from an ex-spouse inheriting or serving as an executor under your estate, but you want that to be crystal clear. So don't forget that step, right? To update, and this goes for things other than divorce, happier things like births, marriages, adoptions, those positive things. You want to account for these new members of your family. And you've got to keep your estate planning documents, particularly your will, updated. We always tell people this is a dynamic document. You need to, you know, revisit this every major life change. You need to revisit these documents, make sure they're up to date, and make sure they align with maybe other designations you've made on your accounts for payable on death beneficiaries, survivorship properties. You want these things to align, not be out of alignment, because guess what? That leads to litigation. Because if there's a difference between the will and some other designation that you've made, that opens the door wide open for me to step in, file a lawsuit, or defend a lawsuit where we do heirs representation of beneficiaries are arguing about, well, they they weren't really clear because they said one thing here and another thing over here.

Greg McIntyre:

Absolutely. So, you know, to align your intent, to not show alternate intent in any type of legal form of fashion, so that your estate plan all says the same thing. It's in alignment. Things work best when they're tuned up and in alignment. So it could be that there just needs to be a tweak, which would be a codicil, right? That's an amendment to a will, a codicil. And a codicil or codicil um is where we're going in and just changing a few things. Um, we could be adding, deleting, or changing an existing article or designation within a will. If it gets too voluminous, if the job's too big, it's just too much of a mess to do a codicil, we will shift and draft a new will while simultaneously revoking any prior wills or codicles. And I'm a big fan of revoking any prior wills or codicils, so much so I want my clients to absolutely and utterly destroy any prior wills. And there's a reason for that because you don't want the prior wills that you made because you're a neat knit and you like to keep things in their order, and you have your first will you ever drafted, your second will, your third will. Maybe you've drafted 10 of them. You know, picture this my loved one dies, and I go in and I see that assortment of wills, and I read through each one of them. One of them gives me everything. The other ones split it between me and my siblings or some other friends or people. Now, me personally, I would obviously take the most current, valid, most recent will. You could have someone viewing those wills that simply selects the one that they like the most and submits that into the probate port. And then let's say there's some copies of other wills floating out there, all of a sudden it activates us, James in there litigating which is the valid will and which should come in to probate and actually control the flow of the assets and who gets what. You do not want to set yourself up for that situation. So you want your most valid current will in place and you want to destroy the previous versions of the will so that you don't have the ghosting or haunting of old will, because that's really where they come about. It's when they come out of the woodwork or you've kept multiple different versions, and you know, gosh, I really want to get into Jane also the importance of using an attorney, not just because I am one, and I am, but I see all the time these cobbled together handwritten writings coupled with typed pages, and it is a puzzle to try to put together legally for the court and get the court to accept, and the court is extremely strict over what it will accept. It is a type document that is witnessed by two individuals that if you want it to be self-proving, and those witnesses that saw you sign and the testator has to sign, that saw those witnesses sign line of sight, the you know, that saw the testator sign, they have to either have notarized a self-proving affidavit at the time the will is signed, stating that they saw you sign it. You were of sound mind, of proper age, and and and and capable of understanding and comprehending that will when you signed it, and they sign in front of a notary, and the notary notarization really makes a sworn affidavit that they swear to. I hereby do swear in a foreign firm that the you know the writing contained in this document is true to the best of my knowledge, you know, and and they're sworn that way, and and that's why that will can be submitted to probate. Without all those elements present, it can't, even though the only requirement in the statute for a will is two witnesses. Because at the time the will is submitted to probate, it could be that you have to go out and track down and find the witnesses and have them sign those affidavits independently at that time or come to court and testify that they saw it. You don't want that trouble, and then trying to get in this handwritten instrument that modifies as a codicle, some somehow, as an addendum, it's extremely hard to do. And people screw this up all the time. That's the scary part, is how easily people proceed and wade into the world of a state planning pro se by themselves to think that they can draft something that's going to be legally valid after they pass away.

Jane Dearwester:

Yes, there are the issues with these DIY. Just Google it, just have chat GPT, write my will, according to questions in the law.

Greg McIntyre:

The needle that you have to thread to get a will into probate has to be done correctly.

Jane Dearwester:

This is not a DIY project.

Greg McIntyre:

No, no, no. So having the the reason I say that you know, that last kind of third part about do-it-yourself wills and and or amending wills yourself or writing on them or separate writings you think are going to go along with them is that it is a scary nightmare scenario for a lot of people and families because it is extremely hard to get all that in as part of the testators' wishes. And there are really tragic circumstances surrounding some of those deaths and different things that make it really hard for families and tough on families. Um, so you can really avoid all that by proper estate planning. And Jane, I would love to see us avoid the haunting and ghosting of all wills by minimizing them in many situations, and trusts aren't for everyone. But we can skip the probate process by proper deed planning with things like ladybird deeds or life estate deeds or or using trust as containers to hold assets and easily pass it on to the next trustee to distribute the assets, right? I mean, we can avoid this scary situation.

Jane Dearwester:

Yeah, I can I can testify here because I'm a single mom. My sole heir of my estate is my 16-year-old son, and thanks to Greg McIntyre. Uh, and I I now have a trust set up. I have my house in the trust. Within the trust, I talk about what happens if I'm not here, who's gonna take care of my son, how the assets are managed, my brother's the trustees if I pass away. And yeah, talk about peace of mind. That's incredible peace of mind to know. Hey, I've got my stuff updated, and you know, not that I'm walking out in front of a bus or doing anything scary, uh, but that's incredible peace of mind to know I've got to be.

Greg McIntyre:

He can just move in the house, Jane. Don't go anywhere. But he could just, I mean, we got enough at the house. He can just move in there.

Jane Dearwester:

There you go.

Greg McIntyre:

He'll be a next attorney at McIntyre Elder Law.

Jane Dearwester:

I don't know about that. I don't know about that, but I can't, I can't.

Greg McIntyre:

Um, so we you should never go anywhere, Jane, because you do a phenomenal job for our clients and our firm. Um, but it is it is good peace of mind to have those things squared away because it is life, such as life. You never know what's gonna happen, right? And the scariest part is not Halloween. It it is uh it is not having a plan or not being confident with the plan you have. Um, and it's so easy to square it away. I've never never met, I've literally never met a client on the estate planning side who could not afford estate planning. Okay, and we could not work through. So, you know, Jane, I I you know, we'd be we we have a free consult model at our firm. So we take all comers. And if if you and your family would like to sit down and get clear on the state plan and talk about your options, give us a call. Call 1-888-999-6600 or schedule online at mcelderlaw.com slash scheduling directly on our calendars. Thank you, Jane, and happy Halloween. Thank you.