I have no doubt this has been discussed here before, but I would appreciate current info / comments. When my wife and I married five years ago, we had durable powers of attorney and wills professionally drawn up for both of us. At no small cost, I might add. Now, with two children and no more expected, I called to ask if we could revise our wills (not the powers of attorney), and inquire as to the cost. I was told everything would have to be re-written at full cost, which is prohibitive for us now. It just ain’t in the budget. My question(s) are as follows:
All our information is the same except a change from two family beneficiaries (parents) to our two children. Witnessing would have to be done again, I assume also. What justifies the claim of having to rewrite everything? Why can’t these relatively minor changes be made for a nominal fee? Printed documents aside, this legal instrument exists in a computer, and probably a back-up. A line associate opens the file, modifies, saves, backs up, and prints out fresh documents which replace ours and the ones on file. This justifies a full re-billing?
It annnoys me enough that I can’t just put on paper my intentions and have it witnessed to be legally binding. Being gouged for such basic legal necessities as wills and powers of attorney should be criminal. Ain’t gonna happen, I know.
Which leads me to my last question:
What, if any, resources exist for do-it-yourself wills, powers of attorney, etc. (basic legal instruments) that will actually hold up in a court of law? I’ve done some searches, with questionable results, but I’d like to hear from our diverse and tenacious Teeming Millions regarding their experiences before I press on. Thanks.
Here’s the thing. Wills are incredibly easy to fuck up.
The law mandates that wills are hard to make (much harder than contracts) because when we have to parse what they say, the most interested party is by definition unavailable to confirm our understanding. But the downside to this is that it’s not uncommon for people to fail to cross every t and dot every i. And that means that the will may not qualify when the time comes.
Another issue is the children. In many states children get an automatic share of the estate., even if a will written before their birth says different. (I have no idea whether that’s true in your state or not – there are many states in both categories.) However, if the will is written afterwards, they don’t get their automatic share. Any change to the will can cancel the automatic share, even if the testator doesn’t want that to happen. Other states may approach it differently. Then, of course, there’s the Rule Against Perpetuities, which nobody understands.
The point is this – every line in a will can cause a huge problem down the road, and just adding new stuff can have a million unintended consequences that must be fully thought through. I don’t mean to say that amending a will is always just as hard as creating one. I don’t do wills, and I’m not planning on starting. But lay people (especially those who’ve ever signed a contract) have no good idea of just how fragile a will can be.
I would also be extraordinarily careful about using frm wills downloaded fro mthe internet. Some of them may be valid, some won’t. But one thing that (I’m told) is quite common is for people to fill out a form will validly but then fail to execute it properly, meaning the will fails. Executing wills is tough – in most states a will must be executed and witnessed by three people. in some states it’s two witnesses. In some they all have to sign at the same time. In some they don’t have to sign at the same time but they do all have to see each other sign. in some the witnesses have to see the testator sign but they don’t have to see each other sign. In some states if a “witnesses” gets a bequest the bequest fails. In some states if a “witness” gets a bequest, the whole will fails. I can think of two or three other execution pitfalls off the top of my head, and my entire experience with wills is one class I took four years ago and got a crappy grade in. The point is that if there’s a failure of execution it might not matter if the will is otherwise well-drafted.
–Cliffy
P.S. The preceeding was not legal advice. You should seek advice from an attorney licensed in your state, fully cogniznt of all the facts of the matter and experienced in the substantive area of law. I do not have anywhere near enough knowledge of the facts of your situation to advise you in this matter, not I am not licensed in your jurisdiction. I also have no experience whatsoever with wills or decedants’ estates. I am not competent to represent you. You are not my client. I am not your lawyer.
Perhaps the funniest essentially-accurate statement ever made in GQ.
What amazes me is that the lawyer is proposing to charge a full fee for what is essentially a rewrite, possibly with establishment of a trust if the children inherit while minors. My suggestion would be to consult another lawyer, perhaps one young and competent who is trying to build up a practice, with copies of the existing wills and the specifics of the desired change.
Don’t forget to ask your lawyer if your state has a provision for a “self-proving” will. It simplifies or eliminates the probate process.
There is also such a thing as an amendment to a will – may be called a codicil??? – that is sometimes appropriate. We did just such a thing recently to change the executor from my sister to one of our daughters since now they are both adults and don’t need a guardian, etc. Nothing else needed to be changed, but we still had to go through all the witnessing, etc.
You can probably tell I’m not a lawyer, but these are a couple of things you may want to ask yours about.
I didn’t mean to suggest that no competent attorney will ever offer you a better price to redo your will, sangfroid. I just want you to understand that amending a will is a much more complex and involved process than just adding a few lines, because those lines can have serious unintended consequences.
Thank you for your comments, Cliffy. Unfortunately, it is precisely this type of indecipherable legalize which I believe is the fundamental problem with basic legal instruments. Our intent is quite clear: “Our assets go to the children.”
Why should it be necessary to have this ridiculous level of legal-babble to state something so simple? The answer would seem to be that legal representation is a self-fulfilling industry. Our extremely convoluted sytem that recognizes written law necessitates having (hiring, at great expense) one’s own representative to navigate the pitfalls and hidden legally binding traps. Or conversely, exploiting them, as so many people of extensive wealth do with tax law. Another thread, that subject.
We really need a ‘Plain English’ law that covers the most basic legal necessities like wills and powers of attorney. Drop the industry jargon, make them simple, legal, and binding, and available to all citizens at a reasonable nominal cost. Given that many, if not most, citizen lawmakers are/were in or from the legal industry, I don’t expect that to happen anytime soon.
As a final note, this is the saddest of all. The fact that you have to state this, on some random message board way out in cyberspace, to protect yourself from potential legal ramifications, is possibly the best argument for a serious overhaul of how the legal system works (or rather doesn’t) for most of the citizens of our fine country. It seems these days, every statement, argument or position on a subject needs to have a disclaimer attached to it. I find it all rather sad.
[If you have a boatload of money, I retract the prior statement.]
Cliffy… I genuinely appreciate that you took the time to reply. This is not a personal assault on you, or on any hard-working legal representatives out there. We really need some changes, though. As it exists now, we purchase justice and representation. Once again, another thread…
I don’t mean to jump on you here, but the idea that lawyers deliberately use archaic legalize and confusion to confound laymen and create a byzantine system that only they can successfully navigate, although long-lived and stubborn, is not at all true. The truth is that lawyers use the plainest english that they can, but they have to operate in a system which is necessarily complex while simultaneously keeping an eye to the future to minimize legal challenges to the document. If I can lift a quote supplied by the esteemed brianmelendez in another thread:
H.W. Fowler, A Dictionary of Modern English Usage 411 (2d ed. 1965), s.v. officialese. “Our assets go to our children” is a good example: who gets your wife’s wedding ring? Does one child get to live in the house, or must it be sold and the assets divided? If one child wants to argue that the entire estate should be liquidated and turned into cash and another wants to keep certain valuable family heirlooms, who is more correctly interpreting your intentions for your estate? If you predecease your wife, does your entire estate still go to your children? If it all goes to her, must she give it to your children when she dies or can she give it all to the church she just joined and leave them in the cold? If she has more children after she dies, can she give it all to them, or must she give the portion of the estate that was yours to your biological children alone?
This type of legal parsing probably disgusts me the most.
Try this:
MY SON AND DAUGHTER GET WHAT FEW ASSETS I HAVE AND CAN ARGUE IT OUT AMONGST THEMSELVES. IF THEY ARE SO SELFISH THAT THEY CANNOT AGREE WHO GETS WHAT, IT ALL GOES TO CHARITY.
DONE.
And I shouldn’t need to pay a leech to parse it for me.
To be fair, it used to be true, although it’s not any more (and hasn’t been for some centuries – payment by the word was abolished in, what, the late 1600’s?).
**Quote=sangfroid]Why should it be necessary to have this ridiculous level of legal-babble to state something so simple?
[/quote]
Because it’s never simple, as pravnik made quite clear, whether you choose to accept it or not. Your counter-example solves none of the problems, it just pushes them onto the next generation. Oh, and what’s the definition of “IF THEY ARE SO SELFISH THAT THEY CANNOT AGREE”? How long do they have? How close do they have to come? How fair does it have to be? What if one of them is willing to compromise and the other is not? The law created none of these questions, but it nonetheless is tasked with answering them. You think that’s easy? It’s not – you’ve tried it twice in this thread and you’ve failed both times. I couldn’t do it, either, but don’t presume to think that the services of those who can are not valuable.
This is an unfortunate misconception. The history of the law over at least the last 80 years has been quite openly to change these problems, which sometimes do exist. But most of the time, really they don’t. The true pitfalls are not “legally binding traps.” They mostly are phantoms. The real pitfall (in civil law) is that people lie and also change their minds (and then lie about that). That’s got nothing to do with the law and everything to do with human nature. Indeed, the law exists to prevent bystanders being injured by a person’s thoughtlessness or capriciousness. (Or intentional evil, too, of course.) The problem that exists is that there are so many ways man has come up with to cause problems for his fellow man, the law has to be extensive to cover them all.
Then it’s a good thing you don’t have to live in an extremely complex world where no one knows what tomorrow may bring!
Uh-oh.
It just cannot be done. Every line ever drawn to demarcate one situation from the other has been two things – underinclusive and overinclusive. Fairness, which takes all factors into accout, leads to complexity. A forced and fanatic simplicity always ignores important truths that don’t easily fit in the equation. I wish that there were easier ways to do things, too, but question is do you want your problems now or would you rather have them years from now when they’re ten times as tall?
The point is simple, sangfroid. The reason wills are so difficult to make is because the speak for someone who isn’t there to express his own wishes. Therefore society makes it absolutely critical for you to get competent assistance in making your will, beause society knows if you tried to do it on your own there’s a good chance you’d fall into problems you cannot forsee – problems not made by lawyers, but made by your heirs, or by simple math, or whatever – and because you’re dead, there’s no way to ask you which way you really meant for it to go.
In U.S. law, which is why it’s generally so great, everything happens for a purpose. Wills are hard to make for a purpose. Contracts are easy to make for a different purpose. There’s a lot of noise in the system, true enough, because the rules were made over centuries of evolution, but that’s why the signal is so strong. Because every time you could convince the court that your situation did not fit into the existing paradigm, the paradigm was changed to make sure your problems were taken into account. That’s admirable.
**And I shouldn’t need to pay a leech to parse it for me.**Well, this is ceasing to be as much fun.
No one’s forcing you to. You’re perfectly free to try writing your own will. In fact, as you’re essentially saying that you’re trusting your heirs to work things out for themselves after you’re dead, why even bother with a will?
(And this is a waste of time, since you ignored pravnik’s excellent post, but which charity? What about your wife? What happens if one of your kids dies before you, or in the same accident that kills you? But knock yourself out. )
Okay, that was funny. And, of course, pravnik meant to say “before she dies…”
But actually, it’s not impossible for a pregnant woman to be in an accident, be legally dead, and be kept on life support until the child can safely live on its own. Highly unlikely, obviously. For men, though, posthumous children can easily happen.
