On Apr 6, 7:31 am, "Fred" <fredhan...@att.net> wrote:
> I made a cash gift to one of my sons a few years ago, and want to take
> this into account in the new will. I am going to include the following
> in my new will. "The remainder of my estate shall be distributed as
> follows. 'Jim' shall receive $20,000.00 plus one-half of the estate
> minus $20,000.00. 'Tom' shall receive one-half of the estate minus
> $20,000.00."
Alhough you don't say, I will assume from context that Tom is the son who got the inter vivos gift of $20k that you want to include in calculating each son's fair share of the probate estate. There may be as many math mavens as lawyers on a computer-based legal group, who are both likely to find your proposed language ambiguous and/or leading to absurd results as far as accomplishing your stated purpose.
Although your phrasing is ambiguous, 20000 + (e - 20000)/2 is what I _think_ you really meant Jim to get. So, even though Tom's stated share is pefectly unambiguous, Tom's share is wrongly stated by your language too, and would leave some of the estate remainder unaccounted for. IMO what you really intended Tom to get is the solution for t to the equation t = e - j so that, where j = 20000 + (e - 20000)/2, then t = e/2 - 10000, NOT -20000.
I _think_ that's what you want Tom to get, since that would always be $20k less than what Jim gets FROM THE ESTATE and, when the $20k inter vivos gift to Tom is taken into account, would mean that both sons get the same total amount from all sources. But your actual statement would give Tom half the estate minus 20k, which is FORTY thousand less than Jim, not twenty less.
Why not just recite, in your Will, the fact of the $20k inter vivos gift to Tom, and mandate that this amount be taken into account in making the final distribution _as_if_ it had been an early distribution from the estate? Or, as another poster suggested, make a $20k special bequest to Jim, then in the residuary bequest, divide the remainder evenly? Then you wouldn't have to recite the math, with the chance you could get your calculations wrong (as you did in your post) and then be stuck with the absurd result. There was a post just a few days ago by someone here on MLM quoting from a trust document that tried to accomplish a similar purpose. I suggest you look it up on your favorite search engine: IIRC it was the only recent thread on MLM that contained the phrase "per stirpes" which should make it very easy to find.
> Flame away you attorneys if you must, but this is not brain surgery.
No, it's not brain surgery, but that's why "lawyer language" often sounds funny to lay people. When a legal sentence strings together a long list of very similar almost-synonyms, it's to avoid confusion, not create it. Lawyers, despite our reputations, usually like to come right out and say what we want to accomplish and then let common sense figure out how to get there, rather than setting up a Rube Goldbergian mechanism that, if someone ever figures it out right, MAY yield the desired result if we can even tell what it is. In general, lawyers like to draft documents so there's no way someone can argue, far down the line when it's too late to change the wording, that e.g. "to have" or "to hold" both mean something different than "to have and to hold" and therefore a clause which only contains one of those words means something different than a clause which contains both.
The IRS code, and adhesion contracts drafted for companies that try to purposely obfuscate clauses that are favorable to the drafter in hopes they will pull the wool over the other party's eyes, are notable exceptions, but they are both roundabout in their language for a reason: the adhesion contract to gain an unfair advantage, and the IRS for social engineering, e.g. to promote sales of hybrid cars by giving incentives but still giving people free choice, without coming right out and mandating "the law requires you to buy a hybrid car.").
IMO it's better to be overly verbose and seemingly repetitive than to be short and cryptic at the expense of unambiguous clarity of meaning. It may not be neurosurgery, but it's not poetry either: deep metaphor and multiple meaning have no place in legal writing. Whatever you write in a Will is what you're almost certainly going to get, even if that's not what you want, so you need to be careful what you write.
With all that money at stake, wouldn't you rather just pay your lawyer a couple hundred bucks at most (he's already drafted your will, so he won't have a steep learning curve on your case) and be sure it gets done right (or else, you will have somebody with malpractice insurance you can sue for screwing it up)?
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
No comments:
Post a Comment