Really bad legal advice

At LegalWills we promote the idea of creating your own Last Will and Testament and other legal forms. We have explained that there is no legal requirement to use the services of a lawyer or solicitor to prepare one’s own Will. The important message to understand is that a lawyer provides legal advice; if you need legal advice, then use the services of a lawyer. If you have a simple situation, but you still recognize the importance of having a Will in place, you may not need legal advice.

At LegalWills we provide some tools to help you prepare your own legal documents. We never enter into a client/attorney relationship, but on many occasions a person may contact us asking for specific information about their situation. It’s actually illegal to give specific information to an individual that can be interpreted as legal advice outside of any jurisdiction that you are licensed to practice law. Our services are available across every US State (except Louisiana) every Canadian Province (except Quebec) and England and Wales. So legally, we cannot give legal advice for everybody who uses our service.

We can give general information that is readily available and often answer questions like “How old to I have to be to write a Will?” or “Can a witness to a Will be a beneficiary?”. This is not regarded as specific advice for an individual, but information that can be found in a few seconds using an internet search engine. There is of course a grey area and this has been the topic of many legal cases particularly in the US, but we have a very strict policy on this and very often advise people to seek legal advice.

The reason I write this today is that I noticed last week a post online that is the type of question that we sometimes receive but we would not answer;

Qυеѕtіοn bу havik_376: If I wеrе tο die, whο gets access tο mу life insurance benefits, іf thе beneficiary іѕ a minor?
I want tο mаkе mу son thе primary benificiary tο mу life insurance policy, bυt whаt іf I died whеn hе wаѕ οnlу 4 years οld? If mу sons father (mу ex husband) gοt custody οf mу son аnd mу son wаѕ thе οnlу benificiary wουld mу ex husband hаνе access tο thаt money? I want раrt οf thаt money tο bе used fοr mу funeral аnd burial, іf mу son wаѕ οnlу 4 hοw wουld hе bе аblе tο υѕе thаt money fοr mу funeral, whο wουld hаνе legal rights tο ѕау whаt thе money іѕ used fοr?
I hаνе talked wіth mу insurance company аnd thеу ѕаіd I саnnοt assign аn executor οf estate? I live іn California аnd thеу ѕаіd іf thеrе wаѕ nο legal guardianship οf mу son whеn I die thеу money іѕ held until mу son іѕ a сеrtаіn age??? Thеn thе money wουld nοt bе allowed tο bе used fοr mу funeral???
Whаt іѕ thе best thing tο dο іn order tο mаkе sure thаt I hаνе a burial аnd thаt mу son hаѕ money tο survive without mу ex-husband having access tο іt? If hе gοt control οf thаt money mу son wουld never see іt.”

It’s not actually a very difficult question but the person is asking for advice and we cannot give that. Here’s the complete shocker though. The BEST ANSWER to this question is this;

Anѕwеr bу Mariachi
Assign уουr parents οr someone thаt уου trust tο bе thе benef. іf thеу wіll υѕе іt fοr thе rіght purpose. Yου сουld аlѕο gеt іt turned іntο a trust fοr hіm, іtѕ called a living wіll”

I would be very surprised if a lawyer suggested this course of action (and a Trust for a Minor is NOT a Living Will).

So here’s the message from this post: If you want to create a Last Will and Testament you do not need a lawyer or solicitor to do it. If you need legal advice then go to a legal professional who can help you. Do not post your legal questions to Yahoo Answers or some other internet forum because the answer you receive may be complete nonsense!

Philanthropy and the Last Will and Testament

There are many reasons to write a Will, and we talk about them in most of our posts on this blog, but one area that we’ve not really touched on is the power of your Last Will and Testament to make a difference to the World. Most of us feel that on a day-by-day basis we could probably do a little more by way of charitable contributions. But it turns out that your Will is one of the most powerful tools for helping people and organizations in need. The common term for this is “planned giving”.

We’ve all heard the story of the elderly widow, with no family, who left their wealth to a local cats’ home, but charitable giving need not always be so newsworthy. Most Wills have sections for specific gifts which allows you to name a sum of money (a “pecuniary legacy” as it is known in the UK) for a specific beneficiary. This really gives you an opportunity to be a little more generous that you may have been during your lifetime and for many modest estates, a $10,000 or £5,000 legacy can be comfortably absorbed.

The next step is to choose the appropriate charity. For some people there may be a particular cause that touched their lives, but it is always worthwhile to conduct a little research into the effectiveness of charities and how much of your donation ends up making a difference. The CBC in Canada this morning exposed the finances of the Canadian Cancer Society which showed how currently 22% of donations end up going to research, down from 40% ten years ago.

Fortunately, there are plenty of resources available to help with your research. In the US, Charity Navigator provides detailed financial breakdowns and rankings of thousands of charities. The UK equivalent is the government-run Charity Commission. In Canada, Charity Intelligence provide a number of reports and last year Moneysense magazine ranked the top 100 charities by things like Efficiency, Governance and Transparency. It would be terrible to think that your legacy was doing little beyond paying salaries to a Board of Directors rather than going to the cause itself.

Once you have decided on the charity, you have to make sure that you name it in an unambiguous way in your Will. Leaving a bequest to “cancer” does not give your Executor enough information to distribute the legacy (although the terms in the Will usually allow them to make their best effort in this case). You should include the registered number of the charity which could either be found on the website or with a government agency.

So if you really couldn’t think of a reason why you would need a Will (and I would love to hear any of these in the comments!), maybe the opportunity to make a difference to the World is just the spur that you need.

Same-sex marriage and the Last Will and Testament

Last week, the State of New York passed same-sex marriage legislation; from July 24th 2011, same-sex couples will enjoy the same rights as those in Connecticut, Iowa, Massachusetts, New Hampshire and Vermont. In Canada, all Provinces and Territories recognize same-sex marriage under the 2005 Civil Marriage Act which defines marriage as “”the lawful union of two persons to the exclusion of all others”. In the UK same-sex couples can be joined in a “Civil union” or “registered partnership”.

Why is this of interest to the legalwills blog? well, the most significant implication is for those who choose not to write a Will. There were many cases in the past of a person dying intestate (without a Will) having lived for decades with a life partner. The law used to say that only married partners could have a claim on the estate, and until recently, same-sex couples had no claim (common-law partners still have no claim in most jurisdictions). The “civil union” in the UK and other same-sex marriage legislation gives rights to survivors when no Will has been written. Of course, at LegalWills we would have just advised everybody to write a Will in 30 minutes and save their surviving partner the anguish, but sadly, in many cases people procrastinate when it comes to putting their estate planning affairs in order.

But same-sex marriage legislation also provides some rights for partners who have been left out of a Will. In most jurisdictions it is not possible to completely disinherit one’s spouse, and this now extends to same-sex relationships where applicable.

There are also clear implications for same-sex couples with children. In a Last Will and Testament a guardian for the care of minor children is named, but this only comes into effect when both parents are unable to provide care. With same-sex marriage the parental rights can now extend to both parents.

The recognition of civil unions also has implications for Powers of Attorney and Living Will forms – if you are ever unable to speak for yourself, for example, if you were in a coma. One’s married partner is usually the first point of contact for physicians who need to consult with a family member on important healthcare decisions.

The law is still quite varied across different jurisdictions and the discussion is probably worthy of a Masters thesis rather than a blog post. However, many basic rules still apply for same-sex couples;

  1. Make sure that you have a Will, Power of Attorney and Living Will in place.
  2. If you planning to disinherit your married partner; seek legal advice as the wishes that you have outlined in your Will may not be enforceable.
  3. If you do get married or divorced, make sure that you update all of your estate planning documents. Marriage typically revokes (cancels) any existing Will.

This is a very rapidly changing legal landscape, and so if you read this in a few months, it may be out of date. If you have any comments to add, please feel free. I am happy to provide any clarifications or corrections.