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Author: criser Three stars, 500 posts Add to my Favorite Fools Ignore this person (you won't see their posts anymore) Number: of 5745  
Subject: Re: Writing a simple will Date: 5/31/2000 11:03 PM
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If you have a "simple and straight-forward" situation, are you saying that you, as a lawyer, don't use a template and "fill in the blanks"?

Of course I have standard clauses and forms. But I have hundreds of standard clauses and forms and I know why one clause is better than another and why simple doesn't necessarily mean fewer words.

In that situation, it's not likely that the will itself will be the cause of "plenty of problems at the time of your death", unless your family (potential heirs) has been the source of plenty of problems while you were alive. Then there will be problems regardless of who wrote the will!

Family squabbles are not necessarily the kinds of problems I'm talking about. And a simple life doesn't mean a simple death. Here are a few examples:

1. Husband and wife are in a car wreck that seriously injures someone. Husband is killed. Wife, who was driving, survives. The injured person obtains a judgment against wife for an amount significantly beyond her auto liability policy limits. Husband had the bulk of the assets, which included a house owned with wife, $50,000 IRA, $20,000 in a joint savings account, a $100,000 life insurance policy, and $25,000 of other miscellaneous personal property.

Does the book tell you how you can assure that husband's assets can pass to the benefit of wife without being devoured by the judgment creditor?

How would anyone know that's how he'll die? Of course, no one knows that, so I try to convince clients to put those couple of extra sentences in the will in case something like that does happen.

Does the book tell you how you can pass on a home in trust to someone, such as a child or disabled relative, to ensure the use of the principal residence capital gain exclusion upon a later sale? I just dealt with that situation a couple of months ago. Disabled son who lived with his parents all his life got the house in trust. But because it was owned by the trustee and not by Son (and because certain language which could have made the residence deemed to be owned by Son for income tax purposes was not included), when the house was sold, it was not eligible for the principal residence exclusion even though Son had lived there for decades.

2. "Simple" situation - young couple, husband and wife, $100,000 of "simple" assets, if one dies, it's to go to the other, if both die, it's to be split between their parents. Car wreck. H dies on Thursday, W dies on Friday. Everything goes to W's parents. Is that what H & W would have intended? Probably not. If W's parents like H's parents, maybe they'll give them half the assets. If they live in NC, where we have a gift tax that taxes gifts (and I mean the donor has to cough up cash - not just using up some exemption) to unrelated people on the first dollar after the $10,000, they'll incur several thousand dollars in gift tax.

3. H & W have a "simple" situation - 2 grown kids, no grandchildren, $100,000 house, $300,000 IRA, $50,000 savings, $50,000 miscellaneous property. Everything left to one another, then split between the kids. H dies, then W dies a few years later, just after the IRS levies on kid #2 for $100,000 in back taxes, penalties and interest. There goes $100,000 of the parents' hard earned assets straight to the IRS. Avoiding that result would have been relatively simple.

4. Grandparents who have a "simple" estate leave $20,000 to 10 year old granddaughter for her college education in trust with their son as trustee. Son absconds with his own daughter's money. There is no language in the trust document to make it easy to remove and replace the trustee and accountings have been waived because that is the boilerplate language from the DIY form book. Daughter turns 18 thinking she's got 30 or 40 thousand dollars for college, and in fact she's got nothing.

These are all real situations involving "simple" wills, 3 of which involved DIY wills.

And I'm not advocating that a lawyer should not be employed to write the will, especially if there are any complexities or potential family problems about which the testator might be aware, but the request from dang 13 was for information on do-it-yourself wills...

You make my point for me by saying "if there are any complexities or potential family problems about which the testator might be aware." Chances are most people are not aware of the complexities or problems or contingencies that might happen. That's my job - I'm a professional worrier. I can think of the craziest stuff -- because that's what I have to do to ensure that my clients get the right results. A crazy scenario might only happen one in a thousand times, but given a thousand crazy scenarios and a thousand clients and the probability starts to increase that something odd or complex is going to happen more often than most people think, even in what seem to be very simple situations.

I know the request was for info about DIY wills, but I couldn't let that slip by any more than an auto mechanic would let slip by a request for info on a DIY valve job from someone who may know a lot about investing or bioengineering or computer programming (or whatever floats the requester's boat) but not much about engine repair.
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