Does my will need to be in legalese?

Question

My wife and I are planning to write a will, or have one written for us. To me, it seems very simple. Our wishes are:

1. If either my wife or I dies, the other one gets everything.
2. If we both die before our child is 18, he goes to Bob. All our stuff goes to our child in a trust that he gets when he turns 18, to be managed by Bob until that time.

These wishes seem very simple and straightforward to me. I can't imagine them being genuinely misinterpreted.

In contrast, a basic online will template runs 10-20 pages. I can imagine this complexity being justified if I had a complex estate in the future, but for now it seems excessive.

Can anyone point towards specific cases where someone with a similar will has run into major problems because they wrote a simple will instead of the complex legalese one?

Answer 1

Legalese is not required

You can and should write a will in plain English. However, you need to ensure that your simple wishes can:

1. Actually be understood,
2. Actually be implemented,
3. Don't have unintended consequences,
4. Cover all bases.

Use a lawyer

I suggest that you write your simple wishes out as you have done and take them to a lawyer. A good lawyer will be able to:

1. Draft a will and have it executed so that it complies with the law,
2. Keep a copy of the will so that your executor can find the damn thing without having to tear your house apart,
3. Consider the contingencies that you haven't.

My lawyer charged me and my wife $150 each - 20 years latter the estate has twice as many children and would be worth several million dollars; I consider it one of the cheapest pieces of insurance I have ever bought.

Contingencies

1. Who is the executor of the will? This is the person who administers the estate until it is finalised. As written, you haven't named one: in most jurisdictions this makes the government's Public Trustee the executor.
2. How and how much will the executor get paid? Executor's are entitled to be paid for their services.
3. What happens if you and your wife are separated or divorced at the time of your death? Wills are not automatically terminated by these events.
4. What if Bob is dead before you die? Or has emigrated? Or is insane?
5. What if Bob dies in the same car crash that kills you and your wife?
6. What if Bob dies after he becomes the trustee of the trust?
7. Who will be your child's guardian? As written, Bob is responsible for the finances but he is not the guardian. The child would be reliant on kinship guardianship or become a ward of the state.
8. For what purposes can Bob use the trust money? Education of the child? Vacations for the child? His own gambling problem?
9. Can the trust borrow money?
10. What types of investments can the trust make? Bolivian palm tree futures anyone?
11. Does Bob need to get professional financial advice about this?
12. Who will audit the trust to ensure Bob is behaving appropriately?
13. Your wife falls pregnant tomorrow. Do you want to write a new will or have one that works no matter how many children you have?
14. What if all 3 of you die in the same car crash? Who gets the estate then?

Only people with no assets or dependants have a simple estate

Answer 2

Can anyone point towards specific cases where someone with a similar will has run into major problems because they wrote a simple will instead of the complex legalese one?

Like every case in every Trusts and Estates textbook.

You wife? Everything goes to her? So when you divorce and remarry does your stuff go to wife A or to wife B?

Your child? What about your other child? The one who is not born yet?

Bob dies before your son. Or better yet, Bob is with you and your wife when you all die.

EDIT TO ADD:
There are two legal fictions that are used in imagining the possibilities, the fertile octogenarian and the promiscuous toddler.

Answer 3

@jqning pointed out some practical considerations of going the DIY route. So I'll approach it differently...

I suggest you conduct the following thought experiment:

I assume, like most people, you have worked at least one job before? Maybe you have had a career in a profession? Maybe not. It doesn't matter for the purpose of this thought experiment.

Fix your mind on your experience in one of those jobs. Imagine all the little details, nuances, tricks and knowledge you gained by experience over time to help you do that job well. Now imagine somebody walking in off the street and on the first day trying to do that job with no training or experience. How well do you think they will perform the first time? Now, if they stick with it and get training and experience they will improve and might do well. But not the first time.

Now let's say they are given an example of what to do. Written by professionals in the job they are trying to do for the first time and the professionals say, "Do it this way."

But the new person knows better and says, "No, I don't need to do it that way. That way is too complicated. All I need is to do it this much simpler way (that I'll just make up off-the-cuff) and it'll be much better."

How do you think that will work out?

Friend, if you insist on DIY lawyering, the least you can do is follow exactly what the professionals have laid out for you. Otherwise, I am certain you will wish you had. Or in this case, your heirs will.

Answer 4

There are a number of available will generation programs, which you can install on your computer and use. Generally these ask you a series of questions, and based on your answers will generate a will using tested language that will stand up in court, and will get the results you wish. The language is tailored to any specific rules in your state or jurisdiction.

The output also includes specific instructions on how to sign the will (or other document) so that it is binding, what needs to be notarized, etc.

Such programs will also advise you if the kind of will you want is more complex than can be handled with the program, so that a lawyer is advisable. I have used such a program myself. I would urge someone with wishes of about the level of complexity suggested by the original question here to use such a program. I also assisted both my parents to generate documents including POAs using such a program.

The program I used (now out of date) and others I have seen will also create both financial and health care powers of attorney, living wills, trusts for children or other dependents, and various similar and related documents. Basic identity information is reused from document to document, so it need not be retyped.

Such a program is, in my view, a good value for money.