Showing posts with label Wills. Show all posts

Friday, August 3, 2018

End around: Some wield wills as a weapon to leave eternal message

Children looking upset at the reading of a will.

End around: Some wield wills as a weapon to leave eternal message

by Tom Alberts Aug 3, 2018

Summary: Wills are usually rooted in kindness and compassion and intended to pass along assets to loved ones and friends. In some cases, the end-of-life documents are utilized as a final twist of the knife resulting from greed, betrayal, family discord and spite.

People utilize a will as their last opportunity to distribute assets and property among loved ones and friends and provide some solace during a time of grief. Most folks of sound mind are motivated by gratitude, kindness and compassion when they make their end-of-life wishes known.

But a will also affords the living one last chance to twist a financial knife, achieve sweet revenge or make a deadly serious point. The motivations behind negative provisions in a will are many – greed, betrayal, resentment, jealousy, spite – and a major divergence from typically altruistic intentions.

Life goes on for stocks and bonds, diamonds and pearls, stamp and record collections, fancy cars and other heirlooms and assets. But their deprivation from survivors, usually because of family squabbles and bitter feelings, can assure that a measure of pain is inflicted far into the future.

Two lawyers with decades of experience have no shortage of stories about wills that are bitter pills to swallow. Barry M. Fish and Les Kotzer have served hundreds of will-writing clients from all walks of life. They’ve shared dozens of anecdotes in their 2014 book “The Will Lawyers: Their Stories of Money, Inheritance, Greed, Family and Betrayal.”

Their experience shows that being a loving family member can serve you well, but selfish progeny with a penchant for parental handouts can be stung badly as beneficiaries. Death-bed vindication can crawl out from under the covers for those slighted by sons, daughters and other ingrates.

"You get nothing!"

“We mortgaged our lives for our ungrateful son. We were heading for the poorhouse,” Nelson, an elderly father, told the authors. Nelson’s son, who lived in a far-away town, for years claimed he had no job, had a child with special needs and required the ongoing financial support of his generous parents.

Upon a surprise visit to the son’s home, Nelson arrived at an opulent apartment and was greeted by a nanny. His son, wife and grandson were vacationing on a tropical island. It was a costly revelation.

“He obviously couldn’t wait for us to die,” Nelson fumed. “He wanted his inheritance now and lied to us to get it. Well, all he is going to get is a letter from us telling him that he milked us enough. He won’t get a nickel from our wills!”

Ouch.

For Maureen, an aging mother who decided to revise her will, second thoughts about three of her four children led to a substantial “heir cut.”

Daughter Chelsea missed her stepdad’s funeral. “I tried to forgive her, but I can’t,” Maureen reasoned. Son Brahm never visited Maureen at the hospital during her serious operation. Same reaction: “I tried to forgive him, but I can’t.” And daughter Crystal “never lifted a finger” to help with the move to a retirement home. “I tried to forgive her, but I can’t.”

Daughter Amy, the youngest, was there for the funeral, the hospital stay and retirement home move. “She deserves to get everything that I own,” Maureen said. “After I die, I don’t care if people look at me as a bad mother. Yes, I do love all my kids. But I just don’t like three of them.”

In the case of Mary, the bogus will that the widowed mother gave to her daughter was medicine needed to cure years of financial pressure. One day, the daughter wanted to “have a talk” with her 85-year-old mom. Mary’s generosity with cash and sharing her home with the daughter weren’t adequate. The daughter wanted the house to be given to her, mortgage-free, now or after Mary’s passing. Mary balked. She had a son who deserved his share.

To keep peace in the home, Mary executed a will that left the house to the daughter. A while later, the daughter left for a week. That’s when Mary took the law in her own hands and invited a lawyer over to execute a new will, nullifying the one in the daughter’s possession.

“I pacified my bullying daughter for the rest of my life with the fake will which had left my home to her, before I revoked the fake,” Mary said. “My real will is leaving everything I own to my son, which is going to punish my daughter long after I am gone.”

In their book, the authors say that most wills don’t fall into the vindictive category, and the previous examples stand out in their practice. But just like a fingerprint, a last will and testament is unique to the person who created it, and there are few limits on human creativity.

Keep in mind, however, that whatever your intentions, a properly executed and updated will as part of an estate plan is an important way to ensure your wishes are followed – good, bad or otherwise.

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life’s contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

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.

This article written and published by:
Legacy Assurance Plan
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
info@legacyassuranceplan.com (email)
@assuranceplan

Wednesday, July 18, 2018

Scrivener’s error: Handwritten wills can translate into probate problems

Alfred Nobel’s handwritten last will and testament is dated Nov. 27, 1895. Photo courtesy of Prolineserver via commons.wikimedia.org.

Scrivener’s error: Handwritten wills can translate into probate problems

by Tom Alberts July 18, 2018

Summary: Laws vary in the United States concerning the validity of handwritten, or holographic, wills. In some states, one’s last wishes can be scrawled on a piece of paper and accepted as valid in probate court. In other jurisdictions, holographic wills will be rejected, and a state’s intestacy laws will determine the distribution of one’s assets. Experts agree the best advice is to utilize an attorney to assist in the process of creating a well-planned and valid will.

Seventy years ago, Canadian farmer Cecil George Harris was trapped under his tractor and used a pocket knife to etch his final wishes into one of the implement’s fenders.

Harris’ immortal words – “In case I die in this mess, I leave all to the wife. Cecil Geo Harris” – have been carved into legal textbooks ever since his accidental death in 1948. The famous fender was accepted as a valid last will and testament by the probate court and survives in a display at the University of Saskatchewan College of Law.

Before the advent of the typewriter and computer age, the standard practice to record one’s legacy was to dip a quill into an inkwell and compose your final wishes on parchment. Back then, a handwritten, or “holographic,” will was the norm.

Today, using pen and paper makes better sense for a grocery list or a note for the baby sitter. Not all states accept holographic wills, and there are other potential pitfalls in using a handwritten document.

DO YOU KNOW YOUR STATE’S LAWS?

The recognition of a holographic will depends on where you live. Some states no longer recognize holographic wills under any circumstances. In other jurisdictions, you can bequeath your fortune based on decrees scrawled on a cocktail napkin, matchbook cover – or tractor fender if necessary.

In about half of the U.S. states, like Oklahoma, holographic wills are perfectly OK. In some, like Florida, they are forbidden. In others, there are specific exceptions and requirements for holographic wills to be recognized by probate courts.

But holographic wills have special requirements that – when not followed – can cause potential problems in probate proceedings. Legal Aid Services of Oklahoma Inc. offers instructions but warns, in all capital letters, that you must follow the 10 detailed rules or a judge may not follow your requests. Among the rules: Every word must be in the testator’s own handwriting; sign your name at the very end with the date above the signature; do not have any witnesses sign the document; and do not notarize it. “Papers with even one typewritten or computer-printed word are not holographic wills,” the information sheet warns.

Nevada loosely regulates holographic wills and has only three requirements: It must be in the testator’s own handwriting, dated and signed. Las Vegas-based probate attorney Jonathan Barlow, discussing the topic in a YouTube video, recounted a case in which a man wrote his will – which was admitted in court as valid – on hotel stationery.

“In that he says, ‘Dear Susie: I want to make sure that you get everything that I have and that my children and my other relatives get nothing.’ Basically: ‘I intend to create a will at some point in the future. Love, Bill,’” Barlow explains. “The kicker is the estate was worth over $2 million. The children were cut out of $2 million due to a hotel stationery letter.”

ARE YOU AVOIDING A RECIPE FOR TROUBLE?

States that validate holographic wills require that they be entirely handwritten, and the “material provisions” – which specify the testator’s wishes – must be in the author’s handwriting.

A will that mixes handwriting and typed copy is a recipe for trouble. In one Arizona case, a partially typed and handwritten document was invalidated. A grandmother’s wishes were tossed aside, and her granddaughter did not share in her legacy. The case is a warning to do-it-yourselfers, says Phoenix-based attorney Kent Burke.

The grandmother had prepared her will on a computer and named the granddaughter as an heir. Some handwritten changes were made, and the will was only signed by the grandmother and a notary. The grandmother’s sister challenged the will and prevailed.

Arguments that the document was a valid holographic will were rejected because the material provisions were not handwritten by the testator. Burke says the case was a “perfect example of someone wanting to save money by preparing her own will. By doing so, it created confusion and substantial costly litigation.”

There are other potential pitfalls with holographic wills. For one, probate courts need to prove the validity of wills and may require the use of handwriting experts. Legibility and sloppiness are another concern that could lead to legacy-altering misunderstandings, and handwritten wills can leave out important details that an estate planning attorney would include. Also, the will is at risk of rejection if there’s evidence the testator was under duress or incompetent when it was written.

When the question about the propriety of creating a holographic will was posed to popular financial writer and TV host Dave Ramsey, his advice was clear. “I would never advise someone to write his own will, unless, of course, he’s an attorney in that state,” Ramsey writes. “Laws can vary from state to state, and some states may not look upon a document like that as being official under law. ... If you’re trying to save money by doing it this way, I would strongly urge you to look at involving a lawyer as an investment.”

Sometimes, there’s little time to spare in creating a last will and testament – like in the case of the Canadian farmer dying in a field – and a holographic will is necessary. But because a thoughtfully crafted will is the foundation of an estate plan, experts suggest utilizing a lawyer when preparing the document. After all, your legacy is at stake.

There are numerous issues to keep in mind when creating your last will and testament as part of a comprehensive estate plan. One helpful option to consider is a Legacy Assurance Plan membership. Members are educated on a variety of estate planning matters and receive access to numerous resources they can use to achieve legacy-protecting objectives. Membership with Legacy Assurance Plan can help families in making important choices that will improve lives for the next generation and beyond.

Legacy Assurance Plan is an estate planning services company. Its goal is to educate people on a variety estate planning issues. It also provides access to a variety of resources to help its members achieve their estate planning objectives. Whether your goal is as simple as protecting your family and loved ones from the costs, delays and hassles of probate or as complex as providing for a disabled child when you no longer can, Legacy Assurance Plan can help you find the information and resources you need to privatize your estate.

This article written and published by:
Legacy Assurance Plan
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
info@legacyassuranceplan.com (email)
#legacyassuranceplan
@assuranceplan

Friday, March 16, 2018

Estate Planning for the Continued Success of Your Farm

Summary Whether you own a small retail or service business, or you are a family farmer, your business is an important part of your life and wealth. Chances are, you have taken steps during your lifetime to protect your business and ensure its longevity. You have probably also taken steps to protect your family during your lifetime. A proper estate plan can include provisions that will ensure that your business or farm’s continuity will be appropriately provided for, and that your loved ones will receive what you intend in accordance with your wishes.

A court case from “across the pond” serves as an example and a useful reminder of just how important proper and complete planning is, especially when you own a business or a farm. In the case from England, the husband was part of a family farming operation. The family had created a business entity (in this case, a partnership) for the business. The farmer’s wife believed that the partnership owned the farming business but that the farmland itself was owned by the husband individually.

The husband died in 2005. He had created a will before he died. His will said that the farmland was to be distributed into a trust that was to benefit the wife. Eventually, though, the wife discovered sometime after her husband’s death that the farmland was 100% owned by the partnership. This meant that the husband individually owned none of the farmland, which meant that his provision in the will funding his farmland into the trust was meaningless and the trust received nothing in terms of land.

The case even ended up in the British courts. While the law of the United Kingdom has its differences from the laws of the U.S. states, the facts that led to this unfortunate farmer’s wife’s problems and subsequent trip to the courthouse could just as easily have been something that happened here in the States.

Business entities can be very useful tools within an overall business plan for your family farm. Establishing a partnership, corporation, LLC or other entity can offer substantial advantages to you and your family (and your farming business) when it comes tax planning, asset protection and reduction of liability exposure, or other objectives.

When you decide to create such legal structures, though, it is important to make sure that they are properly incorporated into your estate plan. If you own your interest in your farm as a member of an LLC, for example, it is essential to make sure that your estate plan includes instructions for distributing your ownership stake in the LLC to whomever you want to receive your interest in the farm. It is also important to make sure that you understand clearly “who owns what,” so that you can make certain that your estate plan functions properly. An estate plan that distributes land will not work if it turns out that your LLC, and not you, own that farmland.

If your estate planning goals have led to establishing a living trust, it is important to make sure that your trust is properly funded. This could include funding your ownership interest in your farm’s business entity into your trust. In other words, for example, you may need to create documentation that transfers legal ownership of your stake of your farming LLC from you as an individual to you as the trustee of your living trust.

While this may all sound very technical, what you should take away is just how important it is, when you plan your estate, to make sure that everything is coordinated to work together. It is just as important to make sure that you review and update your plan – your whole plan – to make sure that it is still constructed to give you and your family the maximum benefit and the maximum realization of your goals. Your experienced estate planning attorney can help you with making the best choices for you and your family.

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.

This article written and published by:

Legacy Assurance Plan

8039 Cooper Creek Blvd

University Park, Florida 34201

844.306.5272 (Phone)

info@legacyassuranceplan.com (email)

@assuranceplan

#legacyassuranceplan

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Friday, February 23, 2018

The Fundamental Difference Between Will and Living Trusts and What it Means for You

Summary: There are several similarities between wills and living trusts, but there are also many differences. A lot of these differences arise from the fundamental differences that exists between wills and living trusts. These differences can, depending on your situation, created certain advantages of avoiding probate as opposed to using the probate administration process to distribute your assets. A knowledgeable estate planning attorney can help you decide which method makes the most sense for you.

Many newspapers, especially smaller ones, may host a regular Question-and-Answer column with a local professional. In the online version of one Midwestern newspaper, the professional hosting the Q&A was a local estate planning attorney. Recently, he posted an answer to a questioner who wanted to know why a will must be recorded or filed with the court, but a living trust does not.

The attorney diligently walked his audience through the differences between wills and living trusts. In shirt, what it comes down to is that, fundamentally, wills are creations of the judicial process and living trusts are not. A will has exactly zero legal power to accomplish anything until it is submitted to a probate court and a probate judge declares it to be valid, because the declaration of its validity is a byproduct of the probate administration process. A living trust is, in the eyes of the law, a contract between the trust’s grantor and the trust’s trustee and, just like most contracts, becomes effective the moment it is signed and notarized.

Of course, the requirement that a will be filed or recorded with the court is not the only procedural difference between wills and living trusts. As noted above, a will only has the power to control anything after it has successfully gone the legal process of probate administration. There are “side effects,” so to speak, of the probate process. While laws have been reformed and the probate administration process has been made simpler in many states, estates that do not qualify for administration through a “small estate” or “summary administration” process still have to jump through a series of procedural hoops. There is still accounting to be done, paperwork that must be submitted to the court and hearings that must be attended. Even with the changes that have come to pass in the law in the last several years and decades, probate still has the potential to be expensive, stressful and time-consuming for the loved ones you leave behind, especially whomever you’ve asked to be the administrator of your estate.

Again, because they are creatures of contract law and not of a judicial process, living trusts often do not require similar hurdles and similar expenditures of money, time and stress. The events and actions that will take place upon the event of your death are triggered, not by a judicial ruling and order, but by a provision that was already established within your living trust document when you signed it.

Additionally, regardless of the changes that may been constructed in your state’s probate administration laws, one thing that is unchanged is that, in the clear majority of places, a probate case is, like most court case files, a public record. This means that, in most cases, almost anybody can go to the court clerk’s office, request your file and review every non-sealed document in it. In many probate case files, this would include inventory documents, accounting documents and lists of heirs. Because trusts generally do not have to go this judicial process upon the death of the grantor, there generally is no court file at all and no public record for people to access.

This is, of course, a very broad (and non-comprehensive) overview of wills and living trusts and the distinctions between them. Not everyone will benefit for the potential advantages that living trusts offer. Not everyone will feel the impact of the potential drawbacks of probate administration. But many will. Which group you fit into is something that only you, working together with a licensed attorney can decide. An experienced estate planning lawyer can help you choose the planning path that makes the most sense for you.