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Wednesday, March 10, 2021

Isn't it obvious? No, actually, it's not.

When I draft wills for clients, I send the client the draft to read at home and ask the clients to confirm that I have accurately expressed their wishes. Every now and then, a client decides to do a bit of editing of my work. This happened today. I had drafted a will in which the client's significant gifts to his children were to be held in trust. The client then re-thought his plans, and changed the clause. Now it said that only half of the share of each child was to be held in trust.

When I saw this, I emailed the client and asked what happens with the other  half of the child's share. His answer was that it went directly to the child. Then he said, "isn't that obvious?"

Okay, so now we get to the meat of what I want to talk about today. No, it isn't obvious to anyone except the testator himself. If we could all just read his mind after he passes away, we wouldn't need for him to make a will. But as it stands, that sort of communication isn't available without a Ouija Board (which is not admissible in the probate court in any event) and wills are still a good idea.

If you want something to happen with your estate, such as your child receiving half of his share right away while the other half is put into trust, you have to state that. Do not assume that anything about it is obvious. 

Another will that I looked at today had the estate divided into percentages. They were 10%, 20%, and 70%. So far, so good. I asked the client what would happen if one of those people predeceased him. Let's say the person who was to get 10% died and the testator didn't get a chance to change his will. What would happen to the 10%? He said that wouldn't happen.

It wouldn't happen? Along with Ouija Boards, some people apparently have fortune-telling crystal balls as well. 

Though I am being (kind of) light-hearted about these situations in this blog, it's really, really important that this sort of issue gets straightened out while you are alive, not after you pass away. You're the only one who knows your mind. Home-made wills can be so very dangerous for many reasons, two of which I've mentioned here. One is that things are left out because they seem obvious to the person who knows his own intentions. The other is that things get left out because people find it impossible to imagine anything unexpected happening.

If you make your will carefully and think it all through, you greatly reduce the chances that anything will be read the wrong way or assumptions will be misinterpreted. If you leave blanks in your will where clear instructions should be, you may well end up losing your hard-earned estate to legal fees while your family tries to sort it all out.

Getting legal advice before you sign your will is worth it. Why even sign one if it's not going to do the job you need it to do?

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