Pay Attention to the Boilerplate
"Boilerplate" provisions in a contract, will, or other legal documents are sections of apparently routine, standard language. The term comes from an old method of printing. Today, "boilerplate" is commonly stored in computer memory to be retrieved and copied when needed. A layperson should beware that the party supplying the boilerplate form usually has developed supposedly "standard" terms (some of which may not apply to every situation) to favor and/or protect the provider.
In the late 1800's and early 1900's, "boilerplate" or ready to print material was supplied to newspapers. Advertisements or syndicated columns were supplied to newspapers in ready-to-use form as heavy iron, prefabricated printing plates that were not (and, indeed, could not) be modified before printing. These never-changed plates came to be known in the late 19th century as "boilerplates" from their resemblance to the plates used to construct boilers. Eventually, any part of the paper that rarely changed (such as the masthead) came to be called "boilerplate." If you were the linotype machine operator, you loved boilerplate; instead of setting type for an article, you could just drop the big square piece of lead in the page setup. Maybe you could fill up a whole page that way!
The term "boilerplate" was later adopted by lawyers to describe those parts of a legal document that are considered "standard language," although any good lawyer will tell you to always read the "boilerplate" in any document you plan to sign.
In a will or trust, the choice of boilerplate is crucial. Let me give you a few examples.
Wills should contain a tax clause. A tax clause is a provision that says where the executor should get the money to pay federal and state death taxes. A common boilerplate provision could provide that all taxes are to be paid from the residue of the probate estate. Maybe your will says that.
What if some of the decedent’s property was jointly-held or payable pursuant to beneficiary designations and passed outside the will? Let’s say that a decedent held bank accounts jointly with a son and that the decedent has a will that leaves the remaining property to a daughter. On decedent’s death, the son (as surviving joint owner) becomes sole owner of the bank accounts. The will, when probated, gives the rest of decedent’s property (if any) to the daughter. But, the will says (in the boilerplate) that all death taxes are to be paid by the executor from the estate. This means that the estate and inheritance taxes payable on the bank accounts passing to the son are paid out of the property that passes to the daughter. Son pays no inheritance tax, but daughter pays the tax on his share as well as on her own. Is that what was intended? Probably not. But that result is mandated by the "boilerplate" provision that was used in the will.
Boilerplate is often used in a will or trust to provide definitions. For example, the will may refer to children, grandchildren, descendants or issue. Who is included? Is a stepchild included in the class? Is an adopted child included in the class? Are children born of unmarried parents included? If there is a definition in the boilerplate, it may exclude stepchildren as beneficiaries. Is this intended? Perhaps. Then again, perhaps not. This is a case where the definition in the boilerplate goes to the heart of the matter--who is a beneficiary and who gets a share of the estate.
If you name a bank or trust company as executor or trustee, do you want them to be able to invest your money in their own stock? If they invest your money in mutual funds, can they have a fee from the mutual funds as well as from your trust? Often boilerplate provisions provide that the answer is yes. Is that what you want?
If you name an individual or a bank or trust company as a trustee, can the beneficiaries ever remove that trustee? Thirty years later when the trustee’s fees are high, investment performance is poor, and there is inadequate customer service, can the trust be moved? It depends on what it says in the boilerplate.
All boilerplate is not equal. The choice of the boilerplate that is appropriate to the circumstances and is in accordance with the intentions of the parties is very important. There is no standard, across-the-board language for anything. It is all written by someone, the words have meaning, and they are binding. The quality of the attorney is often reflected in the quality of the boilerplate. Never skip over something saying "it’s just boilerplate."
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"The dispute over the $15 million policy is a dramatic example of a larger controversy roiling the life-insurance industry over "stranger-originated" policies. In recent years, insurance agents, hedge funds and other investors have induced thousands of elderly people to take out giant policies. Investors then buy these policies, pay the premiums, and collect when the insured dies.
