I don’t practice law any more, but back when I did, my friend Steve called me for help with his will. “I’m filling out this form that says it’s legal in all 50 states,” he told me. “But I don’t understand a few things they’re asking for.”
After I answered Steve’s questions, he said, “Great, thanks. Now I just have to have this notarized and I’m done.”
“Notarized?” I asked. “Not in Ohio. Steve, how many signature lines for witnesses does that will form have?”
When he answered, “One,” I had to wonder which 50 states the form’s producer had in mind. In Ohio, at least two witnesses have to sign a will for it to be valid. (And not everyone can be a witness.)
Time and again, I’ve seen people get into trouble with do-it-yourself legal documents. Are wills simple? Yes. So are brake jobs. But I know better than to try to do one myself. I don’t have any experience with brakes, other than stepping on the pedal.
A botched will, like a botched brake job, can be dangerous. It doesn’t matter what you meant the will to say or do. It’s what’s in writing that counts. And wills have hundreds of years of legal history behind them, history that makes words say things you might not think they mean.
For instance, suppose my will says I’m leaving my car to you “and your heirs.” You may think this means that after I’ve died, you and the people who inherit from you would, as a group, own my car. But it really means I’m giving total ownership of my car to you. Just you—not to your heirs or anybody else. As a result, you will own my car in fee simple absolute—a legal phrase which means you own the whole thing.
It’s not what you think of as a fee at all, is it? And it certainly isn’t simple. Even though this language may not make sense to us, it’s going to be enforced the way lawyers and courts understand it, not the way lay people would. (In court, words don’t always mean what we think they mean. Someone said lawyers are the only people who write a 100 page document and call it a “brief.”)
Most of us need only four estate planning documents: a will (so we know where our property will go when we die), a durable power of attorney (so someone can sign for our financial affairs if we’re alive but unavailable), a living will (so your doctor knows whether to take you off life support) and a health care power of attorney (so someone can make medical decisions for you if you can’t). All together, these documents typically cost a few hundred dollars to prepare.
Still, that’s cheap compared to the headaches you could end up with if you wing it. Legal documents should be handled by legal experts, just as engineering problems should be handled by engineering experts. I could save a lot of money on my bridge if I design it myself. But when it falls into the river, I have bigger headaches. Sometimes it really does pay, even if the job looks pretty straightforward, to have an experienced professional do the job.