The broken system of the Last Will and Testament

morse

Samuel Morse invents the telegraph and the UK Wills Act was written

We live in a wonderful age of smartphones, social media, biometrics, geolocation and even “smart clothing”. There is however one industry that seems to have dodged the world of technology – the system of writing a Last Will and Testament hasn’t changed much in centuries. In fact, the law pertaining to Wills in the UK was written in 1837, the year that Samuel Morse invented the telegraph, and aside from a few minor updates, the law has not really changed very much. Today, there are at least three major issues with our system of writing a Will;

1. Most people don’t have one

Everybody should have a Will, but most people don’t have one, and for those that do, most are not kept up-to-date. This is a serious issue as people end up dying intestate and their estate is not distributed according to their wishes, or worse, their wealth goes to the government. There are a number of reasons for this;  general procrastination and cost are most frequently cited. In most cases though, it comes down to the misconception that the only people who can write Wills are legal professionals. This is of course not true, anybody can write their own Will, but the legal profession continually scaremongers the general public by making weak analogies (“you wouldn’t perform your own brain surgery, so why would you write your own Will?”) or making it sound more difficult than it actually is “use a lawyer because you have to sign it correctly or it is invalid” (you have to sign the document in the presence of two witnesses….most people can understand this instruction). But the best method for making the process seemingly beyond the understanding of the general public is persisting in using the language of Chaucer and Shakespeare. Wills are still filled with terms like “hereinafter”, “thereof”, “hereunder” and 250 word sentences (I counted an actual sentence in my Will). There is absolutely no justifiable reason for forcing a document written in 2013 to be totally unreadable. There is also no legal requirement to use impenetrable prose to write a Will.

2. Finding the Will

The most frequent call we receive at LegalWills is from a loved one who thinks their family member had a Will, but they can’t find it. There is no registry of Wills, and if there were, most people wouldn’t use them. There is also no way of knowing whether a Will that has been found is the latest version. It is a system that should not exist in the advanced technology age that we are living. The only legal Will is a printed piece of paper with a scrawled signature. Electronic Wills are not legal, nor video Wills, nor digital signatures on Wills. If a person dies in a house fire, chances are their Will went with them. Everybody who dies from a natural disaster will probably be deemed to have died intestate as their Will went with the tornado…flood…tsunami. And don’t assume that writing a Will with a lawyer is any help, we often hear “my father died in Vancouver, he wrote a Will with a lawyer, but we don’t know which one, but I think he wrote it about 25 years ago”. It is a hopeless situation.

3. Collecting the Assets

Assuming that a Will has been written (point 1) and the Will has been found (point 2), the Will probably says something like “I leave my entire estate to …” . The Executor then has to start gathering up these assets; the life insurance policies, bank accounts, government bonds, share certificates, cash, online accounts. The problem is, the Executor has absolutely no way of knowing when they are done. We wrote about this in a previous article when Citibank put out a 16 page supplement to the New York Times with a list of thousands of old accounts asking for people to claim them. There are some tools available to help, like www.mylifelocker.com. But again, it’s a problem that shouldn’t exist in 2013.

At LegalWills.ca, LegalWills.co.uk and USLegalWills.com we are trying to help with each of these issues, and I will describe in more detail in future blog posts. But it is infuriating at a time when I can buy a pair of socks with smart sensors and an accompanying iPhone app that the Wills business seems to have been frozen for 200 years.

I’m trying to think of a good reason to not have a Will….

The story of Roman Blum has puzzled me all day. He was very wealthy – to the tune of $40M. He had many friends and was a fixture of the New York social scene. He was an incredibly smart business man, and employed a group of professional advisors including accountants and lawyers. He was obviously touched by many social causes having been a holocaust survivor himself. So how could a man in this position, reach the age of 97 and still be procrastinating over the act of writing his Will? How could a man with such a sizeable estate miss the boat entirely, and allow the whole lot to pass to the State treasury?

The New York Times article has some illuminating quotes from his friends and professional advisors, which has relevance to the 60 percent of adults who don’t currently have a Will;

He was a very smart man but he died like an idiot”
Paul Skurka, a fellow Holocaust survivor who befriended Mr. Blum in the 1970s

This comment demonstrates that writing a Will is often not about YOU, it’s about everybody that is left behind to pick up the pieces. It really is idiotic.

I spoke to Roman many times before he passed away, and he knew what to do, how to name beneficiaries,Two weeks before he died, I had finally gotten him to sit down. He saw the end was coming. He was becoming mentally feeble. We agreed. I had to go away, and so he told me, ‘O.K., when you come back I will do it.’ But by then it was too late. We came this close…”
Mason D. Corn, his accountant and friend for 30 years.

The man was 97 years old. He should have written a Will in his twenties and updated it throughout his life. Planning to prepare a Will just before you die is a desperately bad idea.

None of Mr. Blum’s friends know why he never wrote a will. Those close to him say it may have been superstition or, after coming so close to dying during the war, a refusal to contemplate his own mortality.”

At LegalWills, we can guarantee that you are no more likely to die if you have written your Will. We can also guarantee that you will die one day.

He may also have been unwilling to share the full details of his estate with a lawyer, the desire for secrecy a holdover from his experiences during the war.”

We have heard this before and explains why services like those offered by us at LegalWills.ca, LegalWills.co.uk and USLegalWills.com are increasingly popular. They are private and convenient, and your personal affairs need not be shared with anybody.

There is a lot of conjecture as to why Mr Bloom never created a Will, but there is real tragedy here. I am quite certain that if he had taken the few minutes to write a Will, he would almost certainly not left his entire fortune to the State of New York. That is not what he wanted.

5 good reasons to write your own Will rather than see a lawyer

I need to preface this article by clarifying what I mean by writing your own Will. I do not mean sitting down with a blank piece of paper, and I do not mean using a blank form kit that you may buy from a bookstore. Either of these approaches is an absolutely terrible idea. No, I’m talking about using interactive software like the tools offered at LegalWills.ca, USLegalWills.com and LegalWills.co.uk. These services protect you from making the mistakes inherent within a blank form kit – like writing something in your Will that is not permitted by law, or not covering all possible situations. In fact, these services are now so good, that they are not just an option “if you cannot afford a lawyer”. They actually have some significant benefits over using a legal professional to prepare your Will.

You will actually get it done
Over 60% of adults don’t have a Will in place, and many complain that it’s the effort of booking an appointment with a lawyer that presents the most significant barrier. Many of our customers use LegalWills because they have procrastinated and they are leaving on a trip, or going into surgery and explain to us that they need “something” in place, and they’ll then get a “proper Will” written some time in the future. One of two things then happens; they either don’t ever get around to preparing the “proper one”, or alternatively, they eventually make an appointment with their lawyer, pay $600 and then find that their new Will is the same as the one prepared at LegalWills. When I say “the same”, I mean identical, word-for-word, exactly the same. The lawyer uses the same software that we use, so the two documents are indistinguishable from each other.

Future-proofing
Another significant barrier to preparing a Will is the notion that you would only write it once in your lifetime. After all, for $600 you’d expect it to be good for at least a few years. Unfortunately though, a Will lasts as long as there are no changes in the circumstance of anybody named in the Will. If your alternate Executor moves abroad, it’s probably a good idea to update your Will. Or supposing a charity comes into your life and you wish to recognize them in a bequest, you may want to update your Will. Unfortunately, with a lawyer it means booking another appointment and paying another $600 each time. With LegalWills you simply login, make the change and print out a new Will. It takes 10 minutes and costs nothing.

Educational
You may be the type of person who actually wants to learn about something as important as your Will. Unfortunately most lawyers do not have the time or inclination to step you through every clause in your Will and explain to you the implications of each sentence. Using a service like the one offered at LegalWills you are able to create your Will at your own pace and read as much or as little as you need to in order to educate yourself. Every page and every decision comes with accompanying help text so you will actually understand your Will and the decisions that were made to create your document. Most people who use our service actually feel empowered after preparing their own Will and completely understand the contents.

Private
There may be details to be included in your Will that you may not be willing to share. You may not feel comfortable telling a lawyer that you would like to leave your old school tie to your nephew and a long list of other personal memorabilia. There may be an organization that means a lot to you that you may not wish to share even with a lawyer. Using our service you get to choose exactly what is included in your Will and you needn’t discuss it with anybody if you don’t want to. You can make an update at any time without needing to explain to anybody the trigger for that update. It is truly your own private and personal document.

Affordable
With all of these advantages you’d almost think that the services at LegalWills would be at least as expensive as going to see a lawyer. But ultimately you are preparing your own documents, and you are not receiving legal advice from us. In North America you can prepare your Will at LegalWills.ca and USLegalWills.com for $34.95, at LegalWills.co.uk it costs £24.95.

Preparing your own document using our services is not an option for people who “can’t afford” legal fees. It is an educated choice for people who need to prepare a Will, who want to make updates whenever they need to, who want to learn a little more about the process, and who protect their privacy. Yes, it’s more affordable, and yes, the final document is identical, but there is so much more that comes with a service like ours.

Things can go wrong

Many people have a strange notion that the best time to write their Last Will and Testament is just before they die, and that preparing the document today is unnecessary. We’ve even had people on our Facebook page say that “fortunately, I don’t need a Will yet”. We made reference to this in an earlier blog article and explained that there are at least three important issues with taking this approach;

  1. You really don’t know when you are going to die
  2. When we are about to die, we may not have the facilities in place to write a Will, and it may not be the first thing on our minds
  3. We may actually lack the mental capacity to prepare a Will at this time and the document is more likely to be challenged.

It has also been suggested to us that some people feel that preparing their Will is actually tempting fate; in other words, if they write their Will, they are actually more likely to die!

We try to explain to people that a Will is not a final document; it can be updated throughout one’s life. In fact, it should be reviewed on a regular basis and updated whenever there is a change in financial or personal circumstance, and not just for the Will writer, but also a change in circumstance for anybody mentioned in the Will. It is always a good idea to have a Will, even if you are young and healthy.

This was made even clearer to me in the last week by two separate incidents that happened to my close friends and neighbours. Fortunately, nobody was hurt, but it demonstrates how quickly things can go wrong.

The first incident happened a few doors down the street. We’ve had a very long hot summer here and one afternoon for whatever reason, some dry grass ignited in the back yard of a house. It quickly caught onto some bushes, a tree, then some power lines which ignited the roof of the house. Within a few hours a beautiful residential house was completely destroyed. Nobody’s fault and there was nothing that anybody could have done.

The next incident happened just a few days later at a friend’s cottage. The days of humidity finally broke and a thunderstorm came through. A few miles from here, the thunderstorms came out of nowhere and were violent. My friend was stranded in their cottage while trees were being uprooted all around them. After an hour or so, they emerged from the cottage to see complete devastation.

Natural disasters do not need to be on the scale of a Tsunami or a Katrina. They can happen very close to home and barely warrant a mention in the news. But the impact can be profound.

None of us are immortal and it doesn’t matter how healthy we are, or how careful we are; things like this can happen.

Fortunately at sites like LegalWills.ca, USLegalWills.com and LegalWills.co.uk you can create your Will in a matter of minutes, from the comfort of your home at a fraction of the cost of paying for legal advice. It doesn’t make sense to procrastinate when you can have peace of mind by the end of the day today.

Some quick tips ahead of preparing your Will

We thought it would be useful to give a few tips for anybody contemplating using one of the services offered at LegalWills. We tell people that you can create a Will in around 20 minutes, but there are a few simple things that you can do to make the process smoother.

1. Don’t be intimidated. You are simply describing how you would like your estate to be distributed if you were to pass away. In most cases this is a very simple process and you do not need to have any legal knowledge to be able to use our service.

2. Do not procrastinate. It seems that many people wait for that perfect time in their life to prepare a Will, not realizing that a Will can be updated at any time. It is more important to have a Will in place that may need to be changed  in a few weeks or months rather than wait until that perfect moment when your life isn’t going to change. Things will happen either to you or to somebody included in your Will and there is a very high likelihood that your Will is going to need to be changed at some point in the future. Write the Will now, and update it when something happens in your life.

3. Think about key appointments. There are two important appointments to be made in a Will. Firstly, you will name an Executor (and an alternate Executor if your first choice is unable to serve). This person will have responsibility to carry out the instructions in the Will. We have described in previous articles how important this appointment is, and talked about the skills and characteristics that need to be possessed by your Executor. Secondly, you may also need to name a guardian for any minor children that you have. Again, we have described some of the considerations that you may think about in naming this person, but it is an appointment that should be made after careful thought.

We also recommend that the appointment of Executor and Guardian should not come as a surprise to somebody. You should discuss these appointments ahead of time with your chosen individuals and make sure that they are prepared to take on the roles.

4. Think about the distribution of your property. This is the why most people write their Last Will and Testament, and it is a good idea to think about this ahead of time. The people who have influenced your life, organizations that you may wish to recognize in your Will, family members, friends. And also think about the assets and possessions that make up your estate and consider how they should best be distributed. Remember of course that the Will can be updated, so if a person or organization makes a profound impression on your life, you can always update your Will to reflect this.

After you have prepared your Will you can add an inventory of assets that can be stored with your Will. At LegalWills.ca, LegalWills.co.uk and USLegalWills.com we have a document specifically to assist your Executor that should be stored with your Will. It helps you to list your personal details and assets including important contact numbers and financial account information. This information typically should not appear in the Will itself as this would require a new Will to be signed and witnessed every time a bank account was changed, but it is an important document that should be stored with the Will.

Once you are clear on the key appointments and the distribution of your property, you are in a great position to start preparing your Will. There is really no need to postpone the task and you really can have your legal Last Will and Testament in your hands in 20 minutes. There is certainly no need to feel intimidated; it is your document, expressing your wishes.

“Fortunately I don’t need a Will yet!”

This was a comment left on our Facebook page recently; “fortunately, I don’t need a Will yet”. Which is somewhat akin to saying I’m not putting my seat belt on because I don’t need one yet. Technically it is correct of course; you don’t need a Will until after you die. The problem is, that it’s just a fraction too late to think about putting one together at that point. Fortunately, there’s no restriction on how far in advance you can write your Will, in fact, today would be a really good time.

With 70% of adults not having a Will in place, it’s clear that many people are adopting the approach of planning to write a Will just before they die, and the associated assumption is that they will die when they are old….probably years from now. However there are a few very serious issues with taking this approach;

  • Most of us are not given due warning when we are about to die. Accidents happen, and it’s just wishful thinking to assume that we will all have the time to sit and write a Will a month or so before we pass away.
  • Moreover, at the time when we know that we are about to pass away, we may not have the capacity nor the facilities to write a Will. If you are planning to use a lawyer to prepare your Will you will either have to book an appointment or ask the lawyer to visit you. If you are planning to prepare your own, you may need a computer, printer, witnesses and the instruments that are at hand now, but may not be in your last few weeks.
  • Most importantly though, a Will written on one’s deathbed is more likely to be challenged because it was not prepared with a rational lucid mind. Knowing that you are close to death may have an impact on your ability to think straight, and that’s not even taking into account any medications that you may be on at that stage. You have to be capable of making sound judgements when preparing your Will. In fact, you must have the mental capacity that you have right now.

This is why it makes sense to prepare your Will now rather than waiting for this imaginary day in the future when you become more sensitive to your mortality.

The other mistake that people often make is to wait until they have stability in their life. We often hear things like “I’m not going to prepare my Will now because we’re planning to start a family next year”. There is no benefit to waiting until life has a perceived stasis. In fact, when you use a service like the one at LegalWills you can make unlimited updates to your documents at any time. When a change occurs in your life, you can just login, make the change to your document and create a brand new Will. If you wait until your circumstances will not change, then your Will is likely to never be written.

There is really no advantage to procrastinating, and many disadvantages. As the proverb says “the best time to plant a tree is 20 years ago, the second best time is now”.