Legal resources for handling your own legal matter should be made more readily available for the public since the cost of hiring an attorney can be too expensive for too many. In some situations, handling your legal matter yourself can be done if you are diligent about researching what you need, what is available, and what is required. Unfortunately, the trap of “you don’t know what you don’t know” can ruin the best-laid plans, particularly estate plans.
“All we want are simple wills.” This statement is followed by the direction that the couple (let’s assume they’re married) wants to leave everything to their spouse first, then the kids. That does sound simple: Mike and Carol Brady’s will would leave everything to each other then to their kids. What could go wrong?
A popular do-it-yourself-will website posted an article that shows the reader how easy it is to write your own will. First, name your executor. Second, name “guardians for young children.” Third, describe how assets will be divided and distributed. Fourth, sign in front of two witnesses, then have them sign. This is great too—again, what could go wrong? This does sound easy. Who needs an attorney!
Let’s examine the Brady’s “mirror wills” (they mirror each other—all to spouse, then to kids equally). The first red flag is that the Brady’s have children from other relationships, and like most blended families, the kids aren’t adopted. In most states, stepchildren do not inherit (unless specifically named). Here, a typical will would state “I leave all my assets to my wife Carol; if she predeceases me, then to my children in equal shares.” Mike dies, and all of his assets go to Carol. Carol dies, and her mirror will states “…all of my assets to Mike; if he predeceases me then to my children equally.” At Carol’s death, she had inherited all of Mike’s assets from when he died. Since Mike predeceased her, then all of her assets, including from Mike, go to Marcia, Jan and Cindy. Those are her children. Greg, Peter and Bobby are her stepchildren. What do the boys get? Nothing under this standard, simple will!
Now let’s examine the do-it-yourself article. Name your executor—not too hard, although the article did not mention naming successor executors, but most people would know that. However, “Name guardians for young children.” I name my brother John Doe and his wife Jane as guardians because they know and love my kids. What if they divorce—now my kids might be in the middle of a custody fight because both were named guardians. What if my brother John is killed in a car accident—does my sister-in-law keep my kids? She would if both are named. Or at brother John’s death would I then want my kids to go live with my sister so my kids remain with a family member?
The best (insert a little sarcasm) advice is “describe how assets will be divided and distributed.” That appears easy to do—divided evenly among my 3 kids. I see that phrase often in wills, “to my children equally.” Dad dies, Kid 1, Kid 2, and Kid 3 each get an equal share of his estate. But what if Kid 3 died before Dad? An attorney would counsel you, and prepare accordingly, whether you want your estate divided between Kid 1 and Kid 2, or if you want one share to Kid 1, one share to Kid 2, and one share to go down to the children of Kid 3 (Dad’s grandchildren).
Most people who do their own wills and estate plans think the documents are good, but they don’t know what they don’t know, and they definitely won’t know because they’ll be dead when any problems are discovered (“oops, Dad disinherited his grandkids”). Simple wills are not that simple in many instances.