Burger Was Right

You probably read it in your newspaper and laughed a little. Chief Justice Warren Burger prepared his own will and messed it up. "It appears," Arlington, Va., attorney George Dodge wrote smugly in his county's bar-association journal, that Burger "chose not to consult an estate planning lawyer. That decision will cost his estate thousands of dollars."

Burger, who died in June, left a probate estate worth $1.8 million. Dodge put the estate tax at $457,500, which could have been avoided, he says, if Burger had had a little smarts.

Funny, right? Years from now, it will be told as a lawyer joke.

There's one little problem. It's dead wrong. Burger had already consulted a lawyer to develop an overall plan. His final, self-drawn will achieved exactly what he wanted. Combined with his late wife Elvera's will (which Dodge didn't investigate), it saved the maximum tax to boot.

The alternative plan that Dodge proposed would have saved the estate less tax and burdened his heirs with an unnecessary trust, says Arlington attorney James Maloney, who's handling the Burger estate. As is often true in matters of money, the simplest steps can be the most sophisticated ones.

When I talked with Dodge, he had trouble explaining how his trusts would work. He said that, at death, Burger could have passed the whole $1.8 million to his children, untaxed.

But Maloney and other tax lawyers say that isn't so. At death, the Burgers could shelter no more than $1.2 million. On the combined probate estates, big taxes will be owed (in the half-million-dollar range, or more), fancy lawyer or no.

Dodge now says he's not an expert in estates this big. So true.

One point to draw from this regrettable story is that you need truly expert advice if you're worth enough to owe an estate tax and want to minimize the cost. Federal taxes currently bite when your net worth exceeds $600,000 (some of the states tax lower amounts). Even when taxes aren't a factor, lawyers can give you a lot of help. You'll learn about pitfalls in your state's inheritance laws and the various ways of making bequests.

In some cases, you might choose a living trust, which isn't a public document. If Burger had everything in trust, people like Dodge couldn't stick their noses in, says attorney Dominic Campisi, of Evans, Latham, Harris & Campisi in San Francisco.

But for me, a lawyer's wife, the Burger will is triggering some heretical thoughts. What's so bad about writing your own will, if your finances are simple? The chief justice (no tax lawyer) did make some drafting mistakes, which Dodge-the-critic happily pounced on. For example, Burger left out language Virginia requires to let an executor sell real estate. But that can be overcome and it's no big deal, says attorney Douglas Siegler of Sutherland, Asbill, Brennan in Washington, D.C.

What's key is that this and other small errors didn't block the Burgers' intent. Their one-page wills left their property to their children with a minimum of fuss and bother. Examples like this give support to reform-minded attorneys, who are currently urging the states to accept more wills that people prepare themselves.

If you're tempted to write your own, here's a summary of current law:

On wills--whether handwritten, typed or prepared from printed will forms-- that are signed, dated and witnessed according to state law: They're legal. If you follow the rules, the courts don't turn you down.

On handwritten wills that haven't been witnessed: They're accepted in around $0 states, says Lawrence Waggoner, professor of law at the University of Michigan Law School. In some states, you have to write every word yourself. (Maloney once got a handwritten Post-it note accepted for probate.) Others accept preprinted will forms if you fill in the key parts by hand.

The remaining 20 states throw out these wills, even when they have family support. With no will, state law dictates where your property goes. The result may be unjust or differ from your intent.

Typed or preprinted wills that you sign and date but that haven't been witnessed according to law: They're doubtful. A court might conclude that having one witness instead of two was a harmless error. But in almost all states, an unwitnessed typed will is thrown out-and for good reason, says attorney Stephen Elias of Nolo Press in Berkeley, Calif., which publishes do-it-yourself law manuals and software. Someone else might have typed it, left himself a bequest and gotten you to sign the document unaware.

A videotape of you reciting your bequests. Invalid, period.

There are plenty of risks to writing your own will.

For one thing, a drafting mistake might confuse your heirs. As an example, say you leave money to "Barbara and her children." Do you mean "Barbara, if living, and if not to her children"? Or, "divided equally among Barbara and her children"? Or "half to Barbara and half to her children"?

And another thing: your state may have weird laws-such as not allowing a witness to the will to inherit anything in it.

If you have a joint bank account with your son he might get all that money, even though the will says your daughter should get half. Here's where good lawyers save you grief. Preprinted will forms and manuals help, but you might misinterpret them.

The biggest risk with a self-drafted will is that your state will throw it out due to picky little errors. But some people simply won't go to a lawyer. They write out their wishes in secret or from a hospital bed. In fairness, these wills deserve respect.

The Uniform Probate Code (used as a model for state laws) recommends that states accept even a typed, unwitnessed will, if the court can be clearly convinced that it's the real thing. Three states are testing this idea: Montana, South Dakota and Colorado. From their experience, we'll learn if this change can stop the fishy wills yet give the honest folk their due. I'll always choose lawyers for my wills. But the courts need to cut the phobics some slack.