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Why Over the Counter Formed Wills Suck!

This is a first in a series of posts I will be writing about why fill-in-the-blank legal forms suck. I will be focusing first on over the counter Last Will and Testaments that you can get at any office supply store. I went to one of the big office supply stores and bought a Last Will and Testament form to try out.

cover2-228x300Without even looking at the content of the Will, I first notice that there are 3 copies that comes with the packet. I guess that’s a pretty good deal considering I paid around $15.00 for the set. That’s only $5 per will!! I’m already impressed.

The Wills are 2 separate pieces of paper, front and back, totaling 4 pages. The preamble to the Will lets you state your name and where you live. The first part after that has you list your spouse and children. That’s pretty standard and great. What about if you’re a same-sex couple though? There’s no side note explaining that even though you might be married to your same-sex spouse in 6 of the 50 states in the US, you’re still not considered married under federal law. I guess same-sex couples are just suppose to know that this form isn’t for them – though it doesn’t say same-sex couples are not suppose to use it.

The second part lets you appoint an executor and an alternate. What if you want co-executors? Sorry, can’t do that I suppose. The third part lets you appoint a guardian for your children. What if you want co-guardians? Sorry, can’t do that either.

The fourth part is the specific bequests. What are specific bequests you ask? You just have to know because there are no explanations. Eh, only idiots need directions anyways. There are 4 specific bequests you can make. That’s 4 and only 4. If you have other family heirlooms, jewelry or money bequests other than the 4 – well, tough luck. Who told you to have so much stuff? Oh and by the way, there’s only a line and a half for you to designate what the property is you want to leave behind. You can’t be more detailed than the line and half they give you…or else!

The fifth section deals with the simultaneous death provision if you and your spouse dies together. Other than the fact that you can’t designate how many hours or days they have to survive you to be considered non-simultaneous, it’s pretty standard and acceptable.

The sixth section deals with the simultaneous death of a beneficiary. It has a 60-day provision for survivorship and if you dont’ like it? Too bad!

The seventh section deals with the residue of your estate and who it goes to. It provides that if you die, the residue is to be given over to your spouse. It’s not an option, it simply has to be so. If your spouse does not survive you then it goes to your children and if they don’t survive you, it goes via state laws of intestacy. What if you had children from a previous marriage and you would like the residue to be split between your spouse and your children? Sorry can’t do that. What if you want to give all your estate to your children because you’ve discussed it with your spouse and they’re OK with it? Sorry can’t do that.

The eighth section gives you can option to dictate what additional powers the executor would have. However, how do I know what powers they originally had because it doesn’t say before this section. How can I know what other powers I want to give my executor if I don’t know what powers he already has? I’m confused.

The ninth provision is fun because it’s extra clauses I can put my initials next to if I chose to include them in my Will. Damn…I don’t quite understand what all these terms mean so…I think I’ll just initial all of them then. Yay!

Part ten is the severability clause which is standard and acceptable.

The last part and the 4th and final page is where you’re suppose to sign and have it witnessed. I notice a bolded clause as such: “CAUTION: LOUISIANA RESIDENTS SHOULD CONSULT AN ATTORNEY BEFORE PREPARING A WILL.” So since I’m in Massachusetts, I guess no one needs to consult an attorney for a will. Makes you wonder why Wills are even a part of a typical law school curriculum and why attorneys get extra training and LLMs in tax law and estate planning‘. Chumps!

The signature page lets you sign the Will and makes you get 3 witnesses. In Massachusetts, you only need 2 witnesses but I guess an extra one can’t hurt. It does tell you to get the form notarized but if you forget, what’s the big deal right?

Something else stuck out and raised some red flags for me while I was reading this Will. First, there are no directions on how to fill it out. There’s no warning on there that says that a Will you buy at a craft or office supply store doesn’t substitute for good legal advice. And the big one is, it doesn’t care if you’re 18 or 80, you can use this will. It doesn’t care if you are single or have special needs children, you can use this will. It doesn’t care if you have $1 to your name or a $5M estate, you can use this Will. That seriously scares me.

As any estate planner can tell you, Wills and Trusts vary greatly from person to person, family to family, because everyone’s situation and goals in life are different. There is no one size fits all Will. Also, a big part of what an estate planning attorney does is to know the law and advise you on what documents you need and how to set it up. If you have a disabled dependant, you need a Special Needs Trust to protect that child from inheritance that you might leave them that would jeopardize their state benefits. But if you’re not advised of this, how would you know? This fill-in-the-blank form Will certainly doesn’t tell you.

Stay tuned next time as I review a Over the Counter General Power of Attorney.