Summary: You’ve probably heard the
warning that, when it comes to creating your estate plan, you should avoid
procrastinating and act right away. And it is definitely true that there is no
time like the present when it comes to establishing your initial plan. However,
the importance of acting swiftly isn’t limited just to starting a plan. It also
applies to plan changes and other actions, where waiting can be just as
problematic and harmful, as it can still create a result where the distribution
of your assets doesn’t match your intentions.
One case that shows the importance of
acting right away went through the courts in Tennessee this year. In the case,
a woman from Knoxville had created a will in 2007. That will said that her
assets were to be split evenly among her children and, if one or more child
died before her, then that child’s children took his/her share. Three years
later, she created a will codicil that altered her plan. Under the revised
plan, her son, Brock, received sole ownership of her home in recognition of his
having spent the preceding years serving as her caregiver.
After another three years passed, the
woman was apparently contemplating the content of plan. Prior to this, Brock
had passed away, dying in November 2012. The woman obtained a “Confidential
Estate Planning Questionnaire” from an attorney, which she completed on Oct. 9,
2013. Five days later, before she signed anything else, the woman died. The
questionnaire document indicated made no mention of distributions to any
grandchildren. Because of Brock’s death, this meant that the distribution plan
in 2013 questionnaire would be very different from the one laid out in the 2007
will and 2010 codicil.
This, of course, ended up causing a
court battle. On one side, Brock’s children argued that the questionnaire was
not a valid legal document and the 2007 will and 2010 codicil’s instructions
should be carried out. On the other side, the woman’s surviving children argued
that the courts should order the woman’s wealth distributed under the plan laid
out in the 2013 questionnaire, as it represented her true intentions at the
time of her death. The woman, they argued, had experienced a “falling out” with
Brock’s children around the time of Brock’s death, did not want them to receive
anything, and the questionnaire was proof that her testamentary intent had changed.
Both the trial court and the appeals
court sided with the grandchildren. The questionnaire document could only be
viewed, under the law, as notes or a memorandum that the woman made in
preparation for creating a new will, not an actual and legally enforceable
estate planning document. That meant that the 2007 will and 2010 codicil were
still valid and that the grandchildren took the grandmother’s home.
The courts in this case had no choice
but to rule for the grandchildren. Estate planning questionnaires are very
useful tools that some attorneys use with their clients to make the process of
estate planning more efficient for both client and counsel. They are not,
however, legal documents. If, however, the children’s claims of a quarrel and
dispute between grandmother and grandchildren were true, then the outcome in
this case would be disappointing, as the woman’s true goals would not have been
carried out.
If the children’s assertions were true,
though, then the case is a lesson teaching the importance of avoiding delay.
The woman had 11 months (from the time of her son’s death until her own death)
to update her plan and make sure that she had a plan in place that reflected
her true objectives. That’s why act promptly is so very important. No one is
promised tomorrow and, as we get older, the odds of something unexpected
happening only go up, statistically speaking. The only way to protect yourself
against having an outdated plan carried out that doesn’t reflect your planning
desires is to make sure that, if something has changed, you act right away.
Whether you’re making a plan or updating one, it’s the only way to ensure that
the legacy you leave is the one you want.
This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com.
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