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So You Just Want a Simple Will?

February 22, 2017  |  estate planning, probate, will

Any general practice lawyer has, at some time, been told by a prospective client that he or she just wanted a “simple Will.” Of course, the term “simple” is relative, and some Wills can indeed be fairly simple. So simple, in fact, that you can pick up a form at Staples or go to one of the several “self help” commercial websites that provide forms, but after that, you are pretty much on your own. 

So let’s think about what goes into a “simple” Will, technically referred to as a Last Will and Testament.

After the usual introduction that it is a person’s (that person is called the "Testator") Last Will and Testament, there usually follows a provision that the Testator wants his or her debts to be paid. This provision may not be strictly necessary, given the fact that the decedent’s estate (the "decedent" is the person that has died) is responsible for paying his or her debts anyway, but the danger is in saying too little about payment of debts.

Let's look at a real world example . . . . You are the parent of three adult children. Two of your children are very self-sufficient and have done well for themselves financially, but the third is not quite so stable, mismanages money, and is still dependent on you for support despite his being an adult. Imagine that you, the indulgent parent that you are, are the co-maker of a mortgage on a house owned by your recklessly extravagant third child. You made sure, in your Will, to provide for payment of your debts. That mortgage is one of your debts. Is that entire mortgage going to be paid out of your estate, depriving your other children of their fair share? Or is a portion of the mortgage going to be paid?  None at all?  A "simple" Will may not answer that question, likely leaving your children arguing with each other as well as with the bank.  

So, one of the things a lawyer would ask you is whether you are in fact obligated on the debts of any other person.  If you do share a debt with someone, perhaps that debt can be excluded, generally or specifically, in the provision that says your debts are to be paid. A simple solution--- if you recognize the problem in advance.

OK, so now you made sure that only your own debts (not the debts you share with other people) are going to be paid, let’s keep the Will simple and just leave everything to your spouse. Oh, wait! Do you have children? Are they under 18? What if you leave everything to your spouse, no provision for your children, and your widow/widower remarries after your death? Is it all right with you if all the money you left goes into a surefire scheme of the new spouse? No? So what do you do? You could leave a substantial portion of your estate directly to your minor children, and hope your spouse has enough to live on and support the children through their minority--- because without going to court none of the children's assets could be touched until they turn 18. But this is all pretty simple, right?  Maybe not so simple as you thought.

If you have no spouse, no children and no assets, your Last Will and Testament might be fairly simple, but there is simply no substitute for having a consultation with someone who can ask you the right questions about your relationships and assets. There is an old poem called “The Jolly Testator,” in which litigators(attorneys who go to court) are encouraged to lift a toast to their best friend, the person who makes his own Will. If you want to save your loved ones the troubles of going to court after you pass away, perhaps a consultation with a lawyer beforehand is worth your time. 

Author: Arnold Taylor - Senior Partner of O'Hara, Taylor, Sloan & Cassidy