Old Wills, New Nightmares

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 We pull back the curtain on why outdated wills and mismatched beneficiary forms can derail even the most well‑meaning plans and how a few practical moves can keep your wishes clear, enforceable, and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you a clean checklist: update after life changes, align beneficiary designations with your will, revoke and destroy outdated versions, and consider probate‑avoidance strategies that fit your situation.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.

Episode Transcript

Greg McIntyre (00:02):
We're heading into the spooky season.
And in that spirit, we're goingto talk about the haunting of
old wills.
How old wills can haunt anindividual even from the grave?
Sounds a little morbid, soundsa little spooky, but here to

(00:22):
join me is attorney JaneDearwester, who's not spooky at
all.

Jane Dearwester (00:30):
Hello.
But but right but we do sithere in Hendersonville right
next door to TransylvaniaAcademy.

Greg McIntyre (00:37):
So which I know for what it is where North
Carolina Dracula lives.

Jane Dearwester (00:44):
That's right.

Greg McIntyre (00:46):
Yes, it is.
So the haunting of old wills.
Okay, why could an old will bea problem?
Why could an aged will, a willI 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 howI want to give out my assets, my

(01:10):
property.
I've taken the time to thinkabout my loved ones, my family,
set some goals, meet with anattorney, draft a will stating
who who gets what.
And then could that be aproblem in the future?

(01:31):
Jane, updating is importanthere because there's changes in
the law.
There are changes in family,and there are changes in assets.
There can be a change in otherplayers, like the executor, the
person who is going to be incharge of passing the assets,
executing your instructions inthe will.

(01:52):
What is the importance ofupdating an old will?

Jane Dearwester (01:59):
There are so many issues that I see doing
litigation uh across the statewith old wills and documents in
general that have not beenupdated.
A lot of those we see betweenspouses.
So uh marriages come and go.
Yeah.
So if you don't update yourwill after you get divorced,

(02:20):
there could be some issuesthere.
There could be some confusion.
There's some state laws thatprotect you from an ex-spouse
inheriting or serving as anexecutor under your estate, but
you want that to be crystalclear.
So don't forget that step,right?
To update, and this goes forthings other than divorce,
happier things like births,marriages, adoptions, those

(02:42):
positive things.
You want to account for thesenew members of your family.
And you've got to keep yourestate planning documents,
particularly your will, updated.
We always tell people this is adynamic document.
You need to, you know, revisitthis every major life change.
You need to revisit thesedocuments, make sure they're up

(03:03):
to date, and make sure theyalign with maybe other
designations you've made on youraccounts for payable on death
beneficiaries, survivorshipproperties.
You want these things to align,not be out of alignment,
because guess what?
That leads to litigation.
Because if there's a differencebetween the will and some other

(03:24):
designation that you've made,that opens the door wide open
for me to step in, file alawsuit, or defend a lawsuit
where we do heirs representationof beneficiaries are arguing
about, well, they they weren'treally clear because they said
one thing here and another thingover here.

Greg McIntyre (03:44):
Absolutely.
So, you know, to align yourintent, to not show alternate
intent in any type of legal formof fashion, so that your estate
plan all says the same thing.
It's in alignment.
Things work best when they'retuned up and in alignment.
So it could be that there justneeds to be a tweak, which would

(04:06):
be a codicil, right?
That's an amendment to a will,a codicil.
And a codicil or codicil um iswhere we're going in and just
changing a few things.
Um, we could be adding,deleting, or changing an
existing article or designationwithin a will.

(04:26):
If it gets too voluminous, ifthe 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 simultaneouslyrevoking any prior wills or
codicles.
And I'm a big fan of revokingany prior wills or codicils, so

(04:46):
much so I want my clients toabsolutely and utterly destroy
any prior wills.
And there's a reason for thatbecause you don't want the prior
wills that you made becauseyou're a neat knit and you like
to keep things in their order,and you have your first will you

(05:06):
ever drafted, your second will,your third will.
Maybe you've drafted 10 ofthem.
You know, picture this my lovedone dies, and I go in and I see
that assortment of wills, and Iread through each one of them.
One of them gives meeverything.
The other ones split it betweenme and my siblings or some

(05:32):
other friends or people.
Now, me personally, I wouldobviously take the most current,
valid, most recent will.
You could have someone viewingthose wills that simply selects
the one that they like the mostand submits that into the

(05:54):
probate port.
And then let's say there's somecopies of other wills floating
out there, all of a sudden itactivates us, James in there
litigating which is the validwill and which should come in to
probate and actually controlthe flow of the assets and who

(06:14):
gets what.
You do not want to set yourselfup for that situation.
So you want your most validcurrent will in place and you
want to destroy the previousversions of the will so that you
don't have the ghosting orhaunting of old will, because
that's really where they comeabout.

(06:36):
It's when they come out of thewoodwork or you've kept multiple
different versions, and youknow, gosh, I really want to get
into Jane also the importanceof using an attorney, not just
because I am one, and I am, butI see all the time these cobbled

(06:56):
together handwritten writingscoupled with typed pages, and it
is a puzzle to try to puttogether legally for the court
and get the court to accept, andthe court is extremely strict
over what it will accept.
It is a type document that iswitnessed by two individuals

(07:21):
that if you want it to beself-proving, and those
witnesses that saw you sign andthe testator has to sign, that
saw those witnesses sign line ofsight, the you know, that saw
the testator sign, they have toeither have notarized a
self-proving affidavit at thetime the will is signed, stating

(07:46):
that they saw you sign it.
You were of sound mind, ofproper age, and and and and
capable of understanding andcomprehending that will when you
signed it, and they sign infront of a notary, and the
notary notarization really makesa sworn affidavit that they
swear to.
I hereby do swear in a foreignfirm that the you know the

(08:10):
writing contained in thisdocument is true to the best of
my knowledge, you know, and andthey're sworn that way, and and
that's why that will can besubmitted to probate.
Without all those elementspresent, it can't, even though
the only requirement in thestatute for a will is two
witnesses.

(08:30):
Because at the time the will issubmitted to probate, it could
be that you have to go out andtrack down and find the
witnesses and have them signthose affidavits independently
at that time or come to courtand testify that they saw it.
You don't want that trouble,and then trying to get in this
handwritten instrument thatmodifies as a codicle, some

(08:54):
somehow, as an addendum, it'sextremely hard to do.
And people screw this up allthe time.
That's the scary part, is howeasily people proceed and wade
into the world of a stateplanning pro se by themselves to
think that they can draftsomething that's going to be

(09:17):
legally valid after they passaway.

Jane Dearwester (09:19):
Yes, there are the issues with these DIY.
Just Google it, just have chatGPT, write my will, according to
questions in the law.

Greg McIntyre (09:31):
The needle that you have to thread to get a will
into probate has to be donecorrectly.

Jane Dearwester (09:36):
This is not a DIY project.

Greg McIntyre (09:39):
No, no, no.
So having the the reason I saythat you know, that last kind of
third part about do-it-yourselfwills and and or amending wills
yourself or writing on them orseparate writings you think are
going to go along with them isthat it is a scary nightmare

(09:59):
scenario for a lot of people andfamilies because it is
extremely hard to get all thatin as part of the testators'
wishes.
And there are really tragiccircumstances surrounding some
of those deaths and differentthings that make it really hard
for families and tough onfamilies.

(10:20):
Um, so you can really avoid allthat by proper estate planning.
And Jane, I would love to seeus avoid the haunting and
ghosting of all wills byminimizing them in many
situations, and trusts aren'tfor everyone.
But we can skip the probateprocess by proper deed planning

(10:41):
with things like ladybird deedsor life estate deeds or or using
trust as containers to holdassets and easily pass it on to
the next trustee to distributethe assets, right?
I mean, we can avoid this scarysituation.

Jane Dearwester (10:59):
Yeah, I can I can testify here because I'm a
single mom.
My sole heir of my estate is my16-year-old son, and thanks to
Greg McIntyre.
Uh, and I I now have a trustset up.
I have my house in the trust.
Within the trust, I talk aboutwhat happens if I'm not here,

(11:21):
who's gonna take care of my son,how the assets are managed, my
brother's the trustees if I passaway.
And yeah, talk about peace ofmind.
That's incredible peace of mindto know.
Hey, I've got my stuff updated,and you know, not that I'm
walking out in front of a bus ordoing anything scary, uh, but

(11:41):
that's incredible peace of mindto know I've got to be.

Greg McIntyre (11:44):
He can just move in the house, Jane.
Don't go anywhere.
But he could just, I mean, wegot enough at the house.
He can just move in there.

Jane Dearwester (11:51):
There you go.

Greg McIntyre (11:52):
He'll be a next attorney at McIntyre Elder Law.

Jane Dearwester (11:56):
I don't know about that.
I don't know about that, but Ican't, I can't.

Greg McIntyre (12:00):
Um, so we you should never go anywhere, Jane,
because you do a phenomenal jobfor our clients and our firm.
Um, but it is it is good peaceof mind to have those things
squared away because it is life,such as life.
You never know what's gonnahappen, right?
And the scariest part is notHalloween.
It it is uh it is not having aplan or not being confident with

(12:23):
the plan you have.
Um, and it's so easy to squareit away.
I've never never met, I'veliterally never met a client on
the estate planning side whocould not afford estate
planning.
Okay, and we could not workthrough.
So, you know, Jane, I I youknow, we'd be we we have a free

(12:46):
consult model at our firm.
So we take all comers.
And if if you and your familywould like to sit down and get
clear on the state plan and talkabout your options, give us a
call.
Call 1-888-999-6600 or scheduleonline at mcelderlaw.com slash

(13:09):
scheduling directly on ourcalendars.
Thank you, Jane, and happyHalloween.
Thank you.