More than filling in the form

See the ads on television and elsewhere–buy the will kit. Spend a few dollars, plus shipping and handling. Fill it in and just as good as anything a lawyer might prepare, right?

Encountering lawyers doing wills as a sideline. Just filling in the forms, right? Get a large number of these, charge small dollars and it’s gravy cash, right?

Encountering paralegals doing wills as part of a legal wills factory. Get the facts and slot them in. Can’t be outside of the template, right?

Ending up with many in the public thinking that wills are major cheap pieces of paper.

If you’ve done a will, here are some things to think about. If you haven’t done a will, here are some of the same things to think about.

Do you want the person running your estate to receive a fixed compensation, or limited compensation, so that most of the money can go to other family members, such as younger children down the road? If the will says nothing, many jurisdictions permit the person running your estate–the Trustee–to receive percentage compensation, based on money in, money out, and an annual percentage of the average estate assets. If there is a large estate where currently young children are to be the beneficiaries…

Do you want the person running your estate to have unrestricted investment powers? Most people, particularly with an estate that might run for quite some time, due to younger beneficiaries, would prefer that the capital be there at the end, by way of government-guaranteed or deposit-insured investments. You have to say it, in the will, to get this result. Otherwise, there is a line of legal argument that says that the Trustee must try to maximize the return on the trust assets, which means mutual funds and other investments where there is no government guarantee as to the return. It means that there is a risk that the estate capital will be reduced, by the time that the beneficiaries are to receive it.

Do you want the beneficiaries to receive significant funds at the age of eighteen, or at the lowest legal age of majority? If asked, I find that most people want the funds distributed at a much older age, such as twenty-five, based on assumptions as to greater maturity in handling money.

The “classic” will is slanted in favour of the Trustee over the beneficiaries, based on a judicial history of wanting Trustees to have wide discretion and ultimate authority in administering an estate. Yet if you ask the people signing these documents what they would prefer, in my experience most prefer to see the Trustee’s behaviour restricted, in favour of a greater focus on protecting the financial welfare of beneficiaries.

People will charge next to nothing for the thought process normally necessary to draft a will that should reflect the personal and varied circumstances of the people signing such a document. Thought process can’t be there.

Right? Not right.

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About brucelarochelle

http://www.lmslawyers.com/bruce-la-rochelle
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