Do you understand your will?
Here’s a conversation between a lawyer and client:
Lawyer: Have you had a chance to review your will?
Client: Yes. I understand every word. I even understand some complete sentences!
If you have a will or trust agreement, take a look at it. Is it clear to you exactly how your assets will be administered? Does it express your individual intentions specifically and clearly enough? Are you confident that it will achieve the results that you want? If you are married, do you understand what your spouse’s will says?
Perhaps you are an executor or trustee or someday you may have to take that role. Do you understand what is or will be required of you?
You may be a beneficiary of an estate or trust. You may receive a document from a lawyer. Will you know what it means or will you be forced to hire an attorney to translate it?
Most legal documents are drafted in “lawyer-ese.” The will and trusts written at our estate planning law firm are written in language that you can understand. Plain-English drafting often requires more words, but you can easily see the difference.
Why Lawyers Don’t Speak or Write in Plain English
Don’t blame lawyers for not speaking English. Blame the way we were trained, especially we “old school” lawyers. Law school consisted of three years of reading court decisions and other documents drafted by generations of our professional predecessors. A substantial portion of the materials for our course in trusts and estates was written before the founding of our Nation.
The basic law of wills goes back to the sixteenth century. Each generation of lawyers learned to write wills by reading document drafted by their predecessors. Some of the arcane language from the time of Henry VIII is still in use. It shouldn’t be. Reading a will or trust agreement should not be like working your way through Shakespeare.
Lawyer language This is a very typical trust provision for children:
“The trustees shall pay or apply to or for the benefit of any of such children and to the exclusion of them, so much of the net income and principal of the trust property as the trustees in their discretion deem advisable for the health, support, maintenance and education of any such children.”
Our plain-English drafting:
“My trustee may, at any time, distribute assets to one or more of my children. My trustee may refrain from making distributions. My trustee may distribute the assets that he or she, in his or her absolute discretion, believes advisable for my children’s support and educational expenses.
My trustee is granted further absolute discretion to distribute assets to one or more children and may exclude others. My trustee may determine: when, how and whether to make distributions; the specific purposes for making them and the specific assets to be distributed.”
Expressing Your Intentions for Your Children in Your Will or TrustParents want their children to receive the education they need in order to succeed in life. As an experienced Connecticut estate planning lawyer, I have seen many estate planning documents that use the word “education” without defining what “education” means. This can actually prevent a child from realizing his or her potential.
I once represented the trustee of a trust that provided for “college education.” A child wanted to go to a technical school to learn a useful job skill. Nevertheless, I had to tell the trustee that he couldn’t make the distribution because, unless the document provides otherwise “college” means a degree granting institution. Here’s how plain-English drafting would have enabled the trustee to carry out the trust creator’s wishes.
Suppose that you’ve named your brother and sister as trustees. They know how you would want your assets distributed. They know your feelings about the importance of education. They understand your belief that adult children or grandchildren should be encouraged to pursue the education which will be most beneficial to them. They understand you.
What if your brother and sister can’t serve as trustees? You have named a bank as successor trustee. A very well meaning trust officer is in charge of your children’s or grandchildren’s trusts. He or she has never met you. His or her only guide to your intentions is the trust document. He or she could be flying blind. Only you could have provided him with specific directions.
Think about how that trust officer’s job might be made easier if the document actually expressed your personal intentions. Try to put yourselves in that trust officer’s shoes as he or she tries to do the best job for your children or grandchildren.
Our Definition of “Education”
“My children’s educational expenses may include tuition, fees, tutorial expenses, books, living expenses and costs of extracurricular activities. My trustee may make distributions for study at: a private nursery, elementary or secondary school; an accredited college or university; or any other duly constituted educational institution. My children’s educational expenses may also include the expenses of any vocational apprenticeship, internship, clerkship or residency.
My trustee may make distributions to assist my children in learning or preparing to carry on a profession, trade or business. My trustee may also distribute assets for transportation reasonably connected with attending any educational institution and for reasonable expenses incident to obtaining admission to any educational institution.
I intend that this definition be liberally construed in my children’s favor. My children should receive the education that they desire and are qualified to take in order to become self-sufficient, useful, productive citizens. If it is appropriate, considering my children’s abilities and the available assets, my children should be financially enabled to pursue private studies, not necessarily at an educational institution, to develop any talent or special interest which they may have, or to engage in post-graduate studies, including obtaining a doctorate or other advanced degree, and to undertake post-doctoral studies under appropriate circumstances."
The Choice Is “Plain”
Here are your options: English vs. Legalese. “Boilerplate” vs. clearly expressed intentions. A financial advisor recently told me that one of my client’s trust agreement expressed her wishes in everyday English as if she had written it herself. That’s one of the highest compliments I’ve ever received. It is fundamentally important to me that my clients understand what I what I explain to them and draft for them.
Please give us a call if you want to review your current documents or to discuss any aspect of estate planning. Thank you.