P R O B A T E   &   P R O P E R T Y
March/April 2003
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Practice Pointers Probate

offers suggestions for improving estate planning and probate practice. The editors of Probate & Property welcome suggestions and contributions from readers. >

Time for Spring Cleaning

In addition to finding the top of your desk, spring cleaning can include an “internal” cleaning of your estate planning boilerplate. Now is a good time to review your documents for clarity and brevity. If your state has adopted the Uniform Prudent Investor Act or the recent revision of the Uniform Principal and Income Act, this review should include a careful consideration of investment guidance and allocation provisions.

Write Documents Your Clients Can Understand

One of the standard questions I ask at the time of a will execution is “Have you read and do you understand this document?” Clients have been known to roll their eyes and say, “Yeah, sure.” I expect that my experience is not unique to me and the documents I have prepared. Eventually, I decided to rewrite my basic documents to make them more readable for clients. The results have been surprising and gratifying. Now, generally clients just say “Yes,” when I ask my routine question. Taking the time to revise and edit your documents can improve client relations and reduce the need for document summaries and other explanations.

Focus on Clarity

It is when I struggle to be brief that I become obscure .

The revision process should focus first on clarity. If, like Horace, you find yourself being obscure when you try to be brief, sacrifice brevity. Although a trust agreement can be shortened considerably by the phrase, “The trustee has the powers granted to trustees under the law of the State of Confusion,” I prefer to list the various powers in the trust document so that the trustee will have explicit instructions. You may also include powers that are not part of the trust law of your state. When reviewing your boilerplate on trust powers, you should compare your document to the statutory powers and confirm that you know why you have included various provisions. You might even prepare an annotated set of powers to assist in later revisions. The process will force you to consider the effectiveness of language you typically ignore.

Be careful of deleting important provisions in the interest of shortening documents. For instance, the use of the phrase “without regard to other means available” would permit a corporate trustee to make distributions without reviewing the beneficiary’s income tax returns, requiring a financial statement, and engaging in other acts that the beneficiary is likely to view as intrusive. Bycontrast, a client may prefer to have the beneficiary’s other resources considered, and the phrase “after considering all other means available” would help avoid confusion in which standard a trustee should employ.

Strive for Simplicity

Using simple language such as “children,” “grandchildren,” and “descendants” can also help clients consider their intentions in a manner that the less familiar “issue” would not. Ironically, I continue to use “ per stirpes” because clients always ask what it means and might not ask the definition of “by representation” even though they do not clearly understand its consequence.

In general, however, you should use familiar terms, such as “recipient” instead of “donee” and “seller” rather than “vendor.” I shifted from “settlor” to “grantor” when a client said that settlor conjured up images of pioneers in covered wagons and distracted her with each reference.

As you work toward clarity, you will find that brevity is often a result of the clarification process. Of course, you should not delete language that is required by statute or made necessary by case law, but much of our boilerplate has roots in ancient history when it was desirable to include the Anglo and Saxon version of various terms. For instance, “give, devise and bequeath” can be simplified to “bequeath.” “Of even date herewith” becomes “today.” “The Grantor is also entitled to demand and receive any portion of the principal of the Trust Property as he may specify in a written notice to the Trustee” can be shortened to “The Grantor is also entitled to receive principal upon written notice to the Trustee.” Examples are endless.

In addition to creating better documents from the client’s perspective, when you are finished you should also be able to answer another familiar question—“Why is this in here?”—with a better response than “Tax purposes.”

Practice Pointers—Probate Editor: Diane Hubbard Kennedy, 4911 E. 56th Street, Indianapolis, IN 46220, d_kennedy@iquest.net.