It probably goes without saying, but the terms and language used in your estate planning documents are so important. Whether you realize it or not, when you meet with your attorney, they are not only working to understand your wishes and your family dynamics, but at the same time running through various questions that help them determine the key terms and language to include in your estate plan documents. It is this “behind the scenes” work that often goes unrecognized.
Occasionally I am asked to review a Will that was prepared with an on-line program or from a prepackaged form set. On its face, these types of arrangements may seem like a good idea. They cost less than having an attorney prepare your estate plan documents and how convenient you can sit at home and complete. However, what we often lose sight of is that these programs do not have the “behind the scenes” work that a real live human can provide you. Your attorney has most likely worked through and experienced a variety of situations that help him/her know what additional questions may be needed or how best to revise the language to avoid a situation they saw with a prior file.
I read about an experiment that was done several years ago by a Minnesota attorney. He completed his Will using an on-line program and then had it reviewed by several estate planning attorneys. The reviewers found several deficiencies with the Will that could have resulted in some very unintended consequences.
One of the issues noted was that the Will did not address what happens if your child predeceases you. There are several options to consider and each could have very different results. For example, assume you had three children and each of those children had two children for a total of six grandchildren. Your Will says if I die, give my estate to my children. However, what happens if child #1 died before you, do you want a per stirpes type of distribution so that child #1’s one-third interest passes to their two children. Or in the alternative, do you want a per capita type of distribution so that the shares are divided into as many equal shares as there are surviving descendants in the generation nearest the designated ancestor and for deceased descendants in the same generation who left surviving descendants. So in our scenario, there would be four equal shares. One share to child #2, one share to child #3 and one share to each of child #1’s children.
The reviewers also noted that there were no successors listed, so that if the named trustee was unable to serve, no alternate trustee was identified. Also, since the Minnesota attorney completing the form had a blended family/second marriage, the Will failed to address the fact that giving all to the surviving spouse could cut out his children from the first marriage. Another consideration would be step-children. Normally, the definition of descendant covers blood relatives. If you want to include step-children you need to specifically include them in your definition of descendants.
On-line programs do not work well where more complex issues are part of your overall estate (e.g. second marriages, children with special needs, divorce). A real live person can bring a wealth of knowledge and experience to the table to help make sure the documents are drafted to match your wishes and fit for your unique family situation.
Please send me an email at firstname.lastname@example.org with any topic suggestions or requests you may have. Although we cannot give you legal advice through the column, we can provide some general information that may be helpful for you to know. Our purpose is to educate and we hope that you can take something new away from this column each time you read it.