Drafting for Success

“You can’t take it with you.” This statement often leads clients to chuckle – if it can’t come along for the ride, it doesn’t actually matter who gets it or what happens to it.

But, upon closer reflection, it does matter. Not only can you not take your possessions with you when you die, you won’t be able to guide your loved ones through the difficult task of dividing mementos and assets fairly.

As a parent of young children I often feel as though I should don a striped shirt and wear a whistle around my neck. As a lawyer, clients regularly warn me that the role of referee won’t end when my children reach adulthood. In both my personal and professional lives, I believe it is our obligation to our children to provide them with an environment designed to help them thrive and succeed.

You can’t take it with you, but you shouldn’t leave a mess behind you when you go either!

Legally, you cannot abdicate your testamentary decisions to another person. This means you cannot appoint an executor or beneficiary to decide for him/herself how your assets will be distributed to others following your death. For example, I have had clients say:

“I want my son to decide for himself how much of my estate to share with his sister.”

Statements such as this generally stem from a unique family history rather than from a lack of interest or concern. It is my role as a lawyer to learn that history and work to devise a legally enforceable solution that also meets my client’s practical and moral objectives. For instance:

“I want my son to have a life interest in my farm, so long as he continues to derive his primary source of income from farming.”

If this is the true motivation behind the client’s original instruction, it can be accomplished in an enforceable way that will likely have a far less negative effect on the long-term relationship between his children!

Wills and other testamentary documents should reflect both your instructions and my professional advice. It is my goal to focus on achieving your objectives, seeing beyond the potentially transactional nature of simply drafting a will.