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Archive for Wills

THE LATEST DO-IT-YOURSELF NIGHTMARE

Friday, April 4th, 2014 by

We are constantly warning clients and friends alike of the dangers of do-it-yourself estate planning.  The odds are just too high that a fill-in-the-blanks estate plan will fail.  We hate to say we told you so, but here it is straight from the pen of Justice Pariente of the Florida Supreme Court:

“I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance.  As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees — the precise results the testator sought to avoid in the first place.”

 

The case that Justice Pariente is referring to is Aldrich v. Basile, where the Court recently was asked to interpret a do-it-yourself will.  Ann Aldrich wrote her will on an “E-Z Legal Form.”  Ann’s big mistake was that her will gave away specific assets (i.e. my gold watch to my sister) but it did not contain a residuary clause.  A residuary clause basically says “here is what to do with any asset I did not specifically mention.”

Ann’s will may have given away all of her assets at the time she made it, but she later inherited more assets from her sister.  She did not update her will to include the new assets, but instead expressed her intent in a separate handwritten note that “all” of her worldly possessions should go to her brother.  Unfortunately for Ann and her brother, this note was not a valid way for Ann to update her will or direct what to do with the assets not specifically given away.  Further, the will itself, without a residuary clause, was not sufficient to “effectively dispose of” any assets not specified.

The end result was that Ann’s heirs under Florida’s intestacy statute (the State’s default will) shared in the property that Ann wanted to go solely to her brother.  Even though it seemed clear what Ann really wanted, she didn’t express it in a legally enforceable way, so the Court had to follow the terms of the will.  As the Court explained, the will was not ambiguous (which would have allowed them to consider Ann’s intent) – it was just missing some critical words!

The internet may provide data, information, and knowledge. But it does not, and cannot, provide legal advice.  Please don’t do estate planning without first obtaining creative, wise, and experienced legal advice.  The parties in the Aldrich case were fighting over an $87,000.00 bank account.  The legal fees most certainly wiped out the bulk of that inheritance.  Don’t let that happen to you or your loved ones.

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RELATIONSHIP SERIES – PART 2

Monday, March 24th, 2014 by

Scenario No.1 – Single Mom with Kids Marries Single Dad with Kids

 

Although this type of “stepfamily” is becoming more and more common, it comes with significant hurdles to overcome.  If you are part of a blended family like this, you are probably well aware of the psychological obstacles.  The marriage will bring changes: most likely a new home and new routines and maybe even a new job or school, new town, or new roommate.  All of this change puts stress on both the couple and their children, who may feel a sense of loss over having to share their biological parent not only with the new spouse but also with their new “step” siblings.

However, many blended families don’t know that they face unique estate planning obstacles as well.  The most likely estate plan for a married couple is matching wills which say: “I leave everything to my spouse and thereafter equally to my children.”  We generally call these “I love you” wills, but, as we have written before, they can send the opposite message to children in blended families.

What many people don’t understand is that a will is only effective to transfer assets once.  For example, we’ll look at a fictitious blended family, Bill and Mary Sample, who have the estate plan described above.  When Bill dies before Mary, all of his property legally passes to Mary and the “thereafter” clause in his will is null and void.  Not only do Bill’s kids not get anything at the time he passes away, Mary is then free to leave all of her property, including everything she inherited from Bill, to her children (or her next spouse, etc.).  Imagine how Bill’s children will feel when someone else inherits their father’s home and prized possessions!  Unfortunately, this happens all too often.

In order to ensure that each member of your family receives what you want them to have, and to prevent fighting, name-calling, and litigation among your children and the “evil” stepparent or stepsiblings, a revocable living trust should be considered.  By leaving assets in trust, you can provide for both your spouse and your children and even explain why and how you want to take care of each.  A clear expression of your wishes can go a long way toward preventing WWIII!

If you would like to learn more about revocable living trust planning, you are welcome to attend one of our monthly Truth About Estate Planning workshops.

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ESTATE PLANNING FOR SAME-SEX COUPLES IN 2014

Friday, February 21st, 2014 by

The Heckerling Institute on Estate Planning, held every January, is the nation’s leading conference for estate planners.  This year’s most-discussed topic was big changes in planning for same-sex couples.

The discourse focused on last year’s major decision of United States v. Windsor.  In Windsor, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) which defined “marriage” and “spouse” for federal purposes as only applicable to heterosexual couples.  The result is that a marriage between any two persons now will be recognized under federal law if it is recognized under the law of the state where it occurred.

The practical result is that same-sex married couples now have access to federal estate and tax planning tools.  This includes use of the marital deduction, portability, disclaimers, joint income tax returns, grantor trusts, spousal rollover of qualified retirement accounts, joint ownership of property, split gifting to maximize annual gift tax exemption, marriage settlement agreements, and GST transfer planning (i.e., reverse QTIP).

On the other hand, same-sex married couples will feel the impact of the “Marriage Penalty” on their tax rates, mortgage interest deductions, and more, just like heterosexual married couples.

Although the Windsor decision has clearly brought about significant change, it did not invalidate DOMA as a whole.  Instead, it left intact Section 2 of DOMA, which allows the states, U.S. territories, and Indian Tribes to refuse to recognize same-sex marriages performed in other states, territories, or tribes.  As a result, the lack of uniformity of laws among the states will continue to create issues for same-sex couples to navigate with the assistance of tax and estate planning professionals.

The focus at Heckerling was on the tax and financial implications of these new laws.  Stay tuned for our “Relationship Series” where we will focus on the more personal and human side of planning in different relationships.

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MORE ESTATE PLANNING LESSONS FROM DOWNTON ABBEY

Friday, February 7th, 2014 by

          My wife is a big fan of Downton Abbey, so at least once each season we are obligated to reference this hit PBS series in our newsletter.  We have already written about general estate planning issues raised in the early seasons of the show.  Fortunately, the opening episode of Season 4 provided a wealth of interesting new material.

          Season 3 ended with Matthew Crawley tragically killed in a car accident.  The 36-year-old heir to the Abbey left a wife, Lady Mary, and baby boy behind.  Season 4 opened with the family still grieving and thinking that Matthew died without a will.  England’s intestacy laws at the time recognized only male heirs, so the baby was believed to now be the 50% owner of Downton Abbey.  The family was seen arguing over who could best represent the baby’s interests.  Then Lord Grantham discovers a letter hidden in one of Matthew’s books that turns out to be a hand written will, leaving his entire estate to Lady Mary.  A legal opinion confirms that the will is valid.

          Lessons learned?

1.       As we’ve written before no one is “too young” to create a thoughtful estate plan.  Matthew was only 36, but had a wife and baby, and was heir to a large estate.  He needed a comprehensive plan.

2.       Don’t rely on chance.  Leaving your will hidden in a book is not a good idea.  Make sure that the location of your estate plan documents is known to your trusted family members and helpers.  Also, don’t rely on a last-minute handwritten will to be valid.  Unlike early 20th Century England, Matthew’s will would not have been valid in 21st Century Florida.  Without 2 disinterested witnesses and a notary, Matthew’s letter would have no legal effect.  Knowing his intentions, but not having them carried out would be all the more frustrating.

          As you watch Downton Abbey, enjoy the fading grandeur of the British aristocracy and the secrets and machinations of the characters who live both upstairs and downstairs.  But do learn from the characters’ mistakes, especially when it comes to estate planning.  To learn more about modern day estate planning, attend our next “Truth About Estate Planning” workshop. 

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HOW TO TALK TO YOUR LOVED ONES ABOUT ESTATE PLANNING

Friday, January 24th, 2014 by

We have heard many excuses to avoid discussing wills, trusts, and everything else relating to estate planning.  The most common stem from concerns that it is too personal or sensitive a subject.  Some even believe that talking about their potential demise will cause it to happen.  However, having a conversation about estate planning with your loved ones is an opportunity for you to explain your wishes, discourage future discord through transparency, and open the door to better planning through better understanding.  Here are some tips on where to begin:

Timing is Key:     Consider your audience and when and how to approach them.  If the person you want to talk to is busy or does not respond well to surprises, you may want to schedule your conversation.  On the other hand, it may be best to broach the subject unannounced on an occasion you know you will provide time to discuss it without distraction, such as on a long drive or walk.

Start with a Story:  You may find it easier to begin with a current event or a friend’s experience rather than diving straight into more personal concerns.  Relating a story about how someone else’s estate plan – or lack thereof – affected his loved ones may also help you convey why the conversation is important to you.

Break it Up:  Depending on your individual circumstances, and the personalities of your loved ones, it may be better to plan to have more than one conversation.  To facilitate a true discussion where all parties feel they are heard and understood, consider addressing each topic, or even each family member, on separate occasions.

After you get the conversation started, let us help you define your wishes and learn about your options.  Attending one of our monthly estate planning workshops is both a great way to keep the discussion going and the first step in our estate planning process.

For more great tips on initiating an estate planning conversation, click here for the Forbes slideshow that inspired us.

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ESTATE PLANNING LESSONS FROM THE GIRL WITH THE DRAGON TATTOO

Friday, January 10th, 2014 by

 

When Stieg Larsson died suddenly in 2004, he was well-known in Sweden as an investigative journalist, political activist, and expert on right-wing extremism.  His partner of more than thirty years, Eva Gabrielsson, whom he did not marry due to security concerns, was the natural, and presumably intended, beneficiary of his estate.  However, Stieg failed to make a valid will expressing this intent and his assets therefore passed by operation of Swedish law to his father and brother, from whom he was nearly estranged.

This estate planning foible would not have been noticed outside of a small political circle in Sweden had it not been for the publication after Stieg’s death of three crime novels, which became the internationally known and bestselling “Millennium Trilogy,” beginning with “The Girl with the Dragon Tattoo.”  Eva, who encouraged Stieg to write, and collaborated with him on, the novels, was denied any share of the profits and, what she claims is worse, any input on their publication and movie rights.  Instead, Stieg’s father and brother have received the copyright to his literary works and a huge monetary windfall in addition to the meager estate that existed at Stieg’s death.

          Stieg Larsson is just the latest in a long line of artists who became worth far more in death than they were in life.  His story illustrates the importance of planning now to protect your loved ones, even if your present circumstances do not appear to warrant it.  Although we are not all future bestselling authors, there is often a much greater value than we realize in both our life’s work and planning to ensure that our loved ones receive it.

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“UNDUE INFLUENCE” AND THE CARETAKER CHILD

Monday, October 21st, 2013 by

We often see a middle-aged “child” becoming the caretaker for an elderly parent.  Sometimes siblings are grateful that such care is being provided.  However, many times those same siblings become very unhappy if the caretaker child is left with a bigger slice of the inheritance pie, or worse yet, has become joint owner with mom on a bank account before mom’s death, so that 100% of those funds go to the caretaker child rather than being split equally under mom’s will.  A lawsuit invariably follows against the caregiver child.

The question is whether we have a “dutiful” child whose sacrifices to care for an elderly parent were rewarded by a voluntary gift from mom or a “scheming” child who utilizes the close relationship to “unduly influence” mom to get the bulk of her assets.  Undue influence is presumed when (i) a person with a confidential (close) relationship with the decedent, (ii) is active in procuring or securing the preparation or execution of a devise (will or other gift) and (iii) is a substantial beneficiary of that devise.

The problem, as was recognized in the recent Florida case of Estate of Kester v. Rocco, is that any child who is truly caring for a frail, elderly parent will most likely (i) have a close relationship with mom; (ii) help mom choose an attorney, drive mom to the attorney, and discuss mom’s plan; and (iii) receive a large part of mom’s assets under her plan, therefore meeting the undue influence test.  However, the court in Estate of Kester said that undue influence should not be presumed when the only evidence presented was that the caregiver child had a close relationship with and often assisted his aging parent.

Although the guidelines aren’t perfectly clear, this recent case provides help for all those dutiful, caring children who want to take care of their elderly parent without worrying that they will be a target for their ungrateful siblings.

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LEGISLATIVE UPDATE: BETTER PROTECTION AGAINST UNETHICAL LAWYERS

Thursday, October 10th, 2013 by

Florida attorneys have long been prohibited by our ethical rules from soliciting or accepting gifts from clients, including drafting a will or trust that names the attorney (or his close relative) as a beneficiary.  The concern is that an attorney who is asking for or receiving a gift from a client has a personal stake and thus will not be able to properly advise the client regarding the transaction (what we call a “conflict of interest”).  There is also the possibility that an attorney could exploit his relationship as a trusted advisor to obtain a gift from his client.

In the past, case law enforced this ethical rule by allowing an improper gift to an attorney to be challenged and, if certain things were proved, voided.  There is now a new statute, effective October 1, 2013, which makes such improper gifts automatically void.  This should provide better protection for clients (and their families) by decreasing the amount of time and money necessary to contest an improper gift.  The statute also provides that the winner of such a contest will recover the costs and fees paid to bring the lawsuit.

Of course, both the ethical rule and the new law make exceptions for a gift from an attorney’s spouse and other close family members.  Additionally, even an unrelated client can make a gift to an attorney under the right conditions.  To read the full text of the statute click here.

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More Estate Administration Mistakes: 5.3 Million Dollar Verdict Against Trustee!

Friday, September 13th, 2013 by

 

          Just a few weeks ago, we cautioned our readers against do-it-yourself estate administration due to the great responsibility that comes with being a trustee or personal representative.  A recent case confirming a judgment of more than $5.3 million against a trustee shows just how serious the courts are about the duties that come with these roles.

          The trustee in that case was slammed by both the trial court and the appeals court for the mistakes he made.  The most obvious error, and the one pointed out by the angry beneficiaries (the deceased trustmaker’s wife and children), was that the trustee paid himself $1.2 million in trustee fees … without telling the beneficiaries.  However, the court also used the trial as an opportunity to examine all of the trustee’s past actions.  It found other mistakes adding up to millions of dollars in damages to the beneficiaries.  These included failure to fulfill basic trustee duties such as providing timely and accurate trust accountings.

          The lesson to be learned is that it is crucial to be aware of, and properly perform, your duties as a trustee or personal representative.  If not, you likely will not fare well in court.  The trustee here could and should have avoided the lawsuit and enormous judgment by obeying the legal requirements placed on him as trustee.  For the full appellate court opinion, click here.   

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Estate Administration: Another Do-It-Yourself Minefield

Friday, August 16th, 2013 by

Hopefully our faithful readers all know by now that there are many hazards to do-it-yourself estate plans.  What you may not know is that trying to administer your loved one’s estate without legal help is just as treacherous.  It is a great honor to be named as a loved one’s personal representative (executor) or trustee, but these roles come with great responsibility and many legal duties.

Unfortunately, we recently have encountered several individuals and families who thought that they could simply read the will or trust and hand out assets without speaking to an attorney.  Please do not make this mistake!  If you are administering a will, you do not have the authority to handle the estate just because your name is in the document – you must be appointed by a probate court.  Even if you are a trustee who manages to avoid probate court, Florida law imposes significant duties on you both when you start acting as trustee and every year thereafter.  Both personal representatives and trustees may be removed and even held personally liable if they fail to perform their duties properly.

We have seen some serious legal messes created by good people who tried to do the right thing but just did not have the right advice.  Don’t become one of them by trying to do it yourself – we are here for you and happy to help.  For more information on do-it-yourself disasters, check out our past articles: Perils of Do-It-Yourself Estate Planning; Why Would You Risk Going to Jail Rather than Talk with a Lawyer?; IRS Gift Tax Audits: Yet Another Reason to Avoid Do-It-Yourself Estate Planning

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