Be Aware of Poor Writing

Posted by Harvey L. CoxAug 05, 20210 Comments

I see a lot of poor writing when reviewing estate plans for clients.  Most of the worst writing I see occurs when people attempt to write their Wills using forms found on the internet, including LegalZoom and Rocket Lawyer.  I addressed do-it-yourself estate planning in a previous post.  In case you didn't see it or you've forgotten what I said, you should run, not walk away from forms found on the internet. 

Proper estate planning isn't as simple as a few fill-in-the-blank forms.  You must know the legal effect of the wording that goes into your estate plan.  You need an estate planning attorney to make sure the language in your estate plan correctly accomplishes what you want to achieve.

Let me illustrate some of the wrong wording I have seen in many "do-it-yourself" wills.

Example #1:  Pete has three children, two sons and a daughter.  He prepares a Will from a form he found on the internet.  In his Will, Pete leaves his estate to "my surviving children." That sounds good.  But is that what Pete meant to say?

If Pete's daughter predeceases him, does he want his estate divided only between his surviving two sons?  That is the result he gets with the wording of his Will.  Do you think maybe he would rather have the share his daughter would have received had she survived him pass to her children, i.e., his grandchildren?  In my experience, most people want the share of a predeceased child to pass to grandchildren.  It is likely Pete wants his grandchildren to get their mother's share. Pete's Will, however, doesn't accomplish that goal.

An experienced estate planning attorney would have explained this option to Pete.  The site on which he found the form gave no instructions regarding the proper wording.

Example #2:  Sara has two children, a son, and a daughter.  She finds a Will form on the internet and uses it to write her Will.  At the time she writes the Will, Sara has no grandchildren.  Using the internet form, Sara leaves her estate equally "to her descendants." When Sara dies, her son has four children, and her daughter has no children.  The question at the probate of Sara's Will is, "who are her descendants?" 

The general rule in Texas is that if you can't go down the family tree, you go out on its branches.  Applying this general rule, Sara's descendants include her son, daughter, and four grandchildren.  Each of them will get one-sixth of Sara's estate.  Do you think this is what Sara intended?  It is possible.  But, more probably, she would have wanted her estate divided equally between her son and her daughter.  A properly drafted Will or Family Living Trust avoids this type of confusion.

There is no substitute for talking with an experienced estate planning attorney.  Internet forms cannot give you the guidance you need to ensure your wishes are correctly and legally expressed and followed.

To help you understand the various things you should consider in preparing your Estate Plan, I have written two books that you can download at no cost. The first is Common Estate Planning Mistakes People Make and How You Can Avoid Them. The second book is The Truth About Estate Planning in Texas. If you prefer a printed copy of the book, call me at (254) 233-7300, and my staff will get one out to you by mail. 

I also offer an estate planning webinar. You can register for the webinar here.  I promise you I'll give you answers you won't find on Legal Zoom or Rocket Lawyer.