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NBI Seminars Joseph M. Placer, Jr., LL.M. [email protected] Placer Law Firm, L.L.C. 337-237-2530 WILL DRAFTING AND RELATED ISSUES December 12, 2017 “As used herein, unless the context clearly indicates otherwise, the masculine gender may include both feminine and neuter genders, words used in the singular may include the plural, or the plural may be read as the singular...” - important in a will, and applicable to these materials. A. Initial advice to the client. Contrary to what most clients expect us to say, the simple fact is that not everyone needs a will. The first task of the estate planning attorney, therefore, is to determine whether a will is appropriate for the client. After you have determined that your client does need a will as part of his estate plan, you must then convince him of the need. Most people (attorneys being high on this list) do not want to do anything that requires them to face their own mortality. A client, even after accepting the need intellectually, will tend to put off the drafting or execution of his will indefinitely unless you can overcome this resistance. This is where the “counselor” portion of the phrase “Attorney and Counselor at Law” comes into play. Your client needs legal counseling to help him to overcome an emotional obstacle. PLACER LAW FIRM, L.L.C. PAGE 1 WILL DRAFTING AND RELATED ISSUES 12/12/2017 QUESTIONS FOR CLIENT: “If you and (client’s spouse) die in a car accident on the way home from this meeting, what happens?” “Who takes custody of your children?” “Who manages their inheritance(s)?” Take the time to explain fully and clearly to client the possible pitfalls of poor or inadequate estate planning, including the consequences of dying without a will. Detail what will happen to his estate under intestate law, including the care and custody of his children, the devolution of his property interests and any taxes, etc. that may arise using real examples from his current situation. Warn him that, even if the current laws of intestacy provide a satisfactory result, these laws can and do change. In intestate successions, the law in effect at the time of death controls the succession. A will, on the other hand, is the client’s (usually only) chance to “write the law” (within limits). A properly drafted will tailors the client’s succession to his needs and desires; it also ensures that his estate, children, business(es), etc. are cared for by persons trusted and chosen by the client. Although these persons (executors, trustees, curators, tutors, etc.) can of course decline to serve, they will have the first option to serve if they survive the client. Finally, as to the validity of a will provision, the law in effect at the time the will is executed controls. If, after being presented with the full facts and with all foreseeable consequences of dying without a will, the client still wishes to forego or “put off for a while” the drafting of a will, ease off. In the case of a client who is set against a will there is nothing you can do - remember, in many cases a will is not really necessary! Where a client acknowledges the need to write a will but cannot seem to commit to having one drafted, note your file and offer to “check PLACER LAW FIRM, L.L.C. PAGE 2 WILL DRAFTING AND RELATED ISSUES 12/12/2017 with” the client in 6 months. If the client agrees, send a short letter (do not call on the telephone). If he does not want to be reminded, you have done all that you can, and with the letter your file will reflect that. B. Checklist for gathering client information. In properly drafting a client’s will, you should provide therein for all reasonably foreseeable situations. This is to say that the will should provide for (additional) children, a change in assets (character or mix) and predeceased or unwilling fiduciaries. Further, the depth and complexity of the will depends largely on the client’s individual circumstances. The best way to make sure you have gathered all information necessary to draft the best will possible for your client is to ask lots of questions. While a client may think some necessary questions far fetched or inapplicable, it is more aggravating to the client (and embarrassing to the attorney) to later discover an asset or situation left out of the will which requires the client to execute a later codicil or the attorney to redraft the entire document. Resist the temptation to make a will as simple as possible just to make it “cheap” for the client. While you certainly want to avoid an unnecessarily complex and expensive document, you also want to be sure the will covers the client’s needs sufficiently and that the client will have no need to redraft or amend the will in the future (absent a significant change in circumstances). The best way to gather the necessary information is NOT to rely on your or the client’s memory. Use a checklist. Include on that checklist everything you can think of that may be needed or should be addressed in a will. Where possible, send a simplified version of your checklist or a “thought list” to the client in advance to get him thinking about executors, trustees, etc. in advance - it will PLACER LAW FIRM, L.L.C. PAGE 3 WILL DRAFTING AND RELATED ISSUES 12/12/2017 save a lot of time in the long run. Sample pre-meeting “thought list” for clients: 1. Who do you want to control the administration of your estate (i.e., the executor)? If more than one (i.e., co-executors), do you want one to be able to act alone? If an executor or co-executor dies or does not want to serve, who should replace him or her? ADVICE: Ask prospective executor(s) if they will serve before finalizing will. Most married people wish the surviving spouse to serve in this capacity. 2. Do you have or could you have at death minor children? If so, who should have custody (assume your spouse dies before or with you)? Should their inheritance(s) be in trust? Who should be trustee? If you want co-trustees, should one be able to act alone? If a trustee or co-trustee dies or does not want to serve, who should replace him or her? ADVICE: Ask prospective trustee(s) if they will serve before finalizing will. Most married people wish the surviving spouse to serve in this capacity. 3. For property left to your spouse, is outright ownership important or just the right to use and/or sell the property? 4. Are there any items or amounts that you wish to leave to specific persons? How is this answer different depending on whether you are survived by your spouse and/or children? 5. Do you want to leave any part of your estate to a charitable organization? 6. What is the full, maiden name of each of your children? What is the exact date of birth of each child? Include ALL children, whether legitimate or illegitimate, alive or dead, in this list. 7. Do you have any children or grandchildren who are disabled, either PLACER LAW FIRM, L.L.C. PAGE 4 WILL DRAFTING AND RELATED ISSUES 12/12/2017 mentally or physically? Any who have an inherited, incurable disease which could in the future render them disabled, either mentally or physically? 8. Who should inherit the bulk and/or residue of your estate? What if he/she/they die before you? 9. Please have the full, birth name of all people to be named in the will, both legatees and fiduciaries (executors, trustees, etc.). 10. Do you want to limit the accessibility of any legacy (use a trust)? If you want to limit when a child or other person receives his or her inheritance, at what age or ages do you want the property released (for example: 1/3 at age 25, another 1/3 at age 30 and the final 1/3 at age 35)? 11. What is the approximate value and composition of your estate? Your spouse’s estate? NOTE: Louisiana community property laws apply to all assets acquired during marriage regardless of the name in which such assets are registered. If an asset such as an investment property, automobile, home or camp was purchased during marriage it is most likely a community asset. It is not necessary to know the name and exact value of each asset of a client for will drafting; it IS necessary to know the general value of each type of asset and the approximate value and composition of the estate as a whole. A client with less that $200K in assets, consisting of a home and a checking account, who has only one child, will need a much different will than one who has $3 million spread out in several pieces of immovable property, stock accounts, etc. and has three unacknowledged illegitimate children in addition to the two by his current marriage. Types of assets which are dealt with in a will include movable and immovable property as well community interests in non-probate assets; these PLACER LAW FIRM, L.L.C. PAGE 5 WILL DRAFTING AND RELATED ISSUES 12/12/2017 assets may be owned outright, they may be partial interests or in trust, etc. If the will is to contain a trust, your “will checklist” should incorporate your “trust checklist.” You will want to get the full, birth names of anyone to be mentioned in the will as well as of the successors to all appointments, etc.
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