FATAL ESTATE PLANNING MISTAKES

Wills Without Witnesses

This is the second article in the series, Fatal Estate Planning Mistakes, which focuses on "war stories" regarding common estate planning mistakes, as seen by a probate and trust litigator.  These stories are meant to serve as a lesson for the average reader.  If the reader sees this mistake below in his or her estate plan, please contact Robert Sewell, Esq., to discuss how to remedy the problem.

THE FATAL FLAW: Susie goes to the drug store and buys a will.  She fills in the blanks on the will.  The will calls for two witnesses for her signature and a notary.  Susie believes that two witnesses are optional and chooses only to have one witness and no notary.  In the will, she gives her entire estate to her daughter Janice and disinherits her son Victor (an addict that will use the money on drugs).  The result is that Susie dies intestate, meaning she has no will or estate plan, because the will was not witnessed by two witnesses.  Victor inherits equal to Janice. 

THE REMEDY:  Creating a will is a right given to you by the legislature.  This seems counter-intuitive; however, because so much fraud and deception has been involved with transferring wealth at death, the legislature insists that for a will to be valid it must meet certain requirements. Foremost among those requirements is that the will be signed by the testator whose signature is witnessed by two witnesses.  Attorneys have successfully argued that a will which has one witness signature and was notarized can be made to be valid in court.  However, there is little case law to support that argument and it will be left to a judge to evaluate the facts.  It is imperative to get two witnesses for every will.  Further it is best to have that will notarized. 

If your will lacks two witnesses, you should have the will reviewed by a qualified attorney to determine its validity. 

FATAL ESTATE PLANNING MISTAKES

Trusts Without Pour-Over Wills

            This is the first article in a new series, Fatal Estate Planning Mistakes, which will focus on “war stories” regarding common estate planning mistakes, as seen by a probate and trust litigator.  These stories are meant to serve as lessons for the average reader.  If the reader sees the mistake below in his/her estate plan, please contact Robert Sewell, Esq., to discuss how to remedy the problem. 

THE FATAL FLAW:  Frank creates a trust.  He titles no assets in the name of trust.  He fails to create a pour-over will believing the trust was enough.  Frank disinherits three of his six children from the trust because he supported these three disproportionately to the other children during his lifetime.  Frank dies believing all his property was in the trust.  The result is that the disinherited children inherit equally to the other children as Frank is “intestate,” meaning he has no estate plan.  This situation is not unique.

THE REMEDY: Individuals who wish to create a trust should also create a pour-over will.  A trust is a device that presently allocates property, as identified by the trust maker (“trustor”), to be placed into the trust.  If the trustor does not title his/her property in the name of the trust, the property is not in the trust.  Rather, upon the testator's death, the property is in the “estate.”  A pour-over will directs property left outside the trust on the trustor's death to be poured into the trust after death.    One might argue that another solution is to title everything in the name of the trust before death; however, whether intentionally or unintentionally, most individuals leave property out of the trust.  If you have a trust, but do not have a pour-over will, your estate plan is incomplete. 

(Please note:  I see this estate planning mistake often when individuals purchase trusts from the internet or from a certified document preparer.  If this is your situation, please have your estate plan reviewed.)

FIVE SIGNS YOU NEED A PROBATE AND TRUST ADMINISTRATION ATTORNEY

A self-represented successor trustee or personal representative (the “Estate Manager”) often ignores warning signs that problems are ahead.  There are a number of signs a Estate Manager is will experience problems and possibly litigation.  Here are five signs the Estate Manager is in trouble and an attorney should be hired:

1.   THE ESTATE MANAGER THINKS THE TRUST AND/OR WILL ARE A SECRET.  The Trust and Will are not a secret held only by the Estate Manager.   Beneficiaries requesting a copy of the Trust or Will, unless the document says otherwise, should receive the ENTIRE document.  If the Estate Manager makes the decision to withhold the document, it makes the Estate Manager appear furtive and beneficiaries lose trust.  When that happens, litigation may be forthcoming.     

2.  THE ESTATE MANAGER IS ACCUSED OF WRONGDOING. A sign of possible litigation ahead is a beneficiary accusing an Estate Manager of wrong doing. This can happen even when the Estate Manager has committed no technical wrong (e.g. he has not stolen the money).  At key moments in the administration of a probate or trust certain things must happen.  An Estate Manager who meets deadlines, provides notice of key events, and provides proper accounting of the estate/trust, engenders trust, can quiet distractors, and in many cases, can stop litigation before it happens.   

3.  THE ESTATE MANAGER THINKS TAXES ARE A PROBLEM ONLY FOR THOSE “RICH GUYS.”  Every estate and trust, large or small, must consider tax issues.  For estates and trusts over 5 million dollars, estate taxes (aka “death taxes”) may be owed.  However, there are other taxable events.  For example, negotiating debts lower than the face amount owed may cause a taxable event.  Significant gifting before the death may cause a taxable event or, at minimum, reporting of the gifts.  The estate/trust making money after the death may cause a taxable event. The decedent’s last income tax return may need to be filed.  As the saying goes, the only thing certain is “death and taxes.”       

4. THE ESTATE MANAGER PAYS BENEFICIARIES BEFORE PAYING ALL THE DEBTS. Debts are paid before beneficiaries.  This sounds simple, but frequently it happens in reverse. An Estate Manager must keep enough money to pay debts and taxes or a lawsuit against the Estate Manager may be forthcoming. 

5.  THE ESTATE MANAGER GUESSES AT THE MEANING OF THE ESTATE DOCUMENTS.  Frequently, an Estate Manager does not understand the estate documents so he/she guesses at the meaning.  If the documents are unclear, an Estate Manager cannot guess at the meaning.  He/She must ask the court for instructions. 

These are just 5 warnings signs that the probate or trust administration is heading for trouble.  If you see any of these signs, either as a beneficiary or Estate Manager, you should immediately contact an attorney.  

TEAR UP THE WILL—A LESSON REGARDING OLD WILLS

Stephen was brilliant.  He graduated top of his class—he married the prettiest girl in town—his children were all above average—and his business ventures always succeeded.  While Stephen truly lived well, he died leaving a complicated estate. 

When Stephen died, his children gathered for his funeral.  Afterwards, they entered his study, where Stephen kept his important papers, and searched for his will.  His will was not found.  Instead, they found a photocopy of a will that was executed ten years previous.  The will gave everything to a charity. 

His children were aghast.  Did he really forget them and refuse to leave them a legacy?  After all, he had spoken to each child about the money he was leaving for education of his grandchildren.    

            Luckily for the children, they consulted a trusted attorney.  The children were informed that courts are reluctant to probate a copy of a will.  Where only a copy of a will is found, the will is presumed to be revoked unless proven otherwise.  The reason for this rule is simple: people frequently change their mind about how to divide their estates on death.  Therefore, they will often revoke the will by tearing it up.

According to A.R.S. § 14-2507, a person may revoke a will, in whole or in part, by performing “a revocatory act.”  This means, among other things, that the person who creates the will can revoke the will by “burning, tearing, cancelling, obliterating or destroying the will or any part of it.”  In Stephen’s case, the children will rest easy because the original will was never found.  If the charity tries to probate the copy of the will, it will need to prove that Stephen did not revoke the old will, which is a difficult burden.  

It is quite possible that Stephen's Estate will be what's called "intestate."  Accordingly, the children will likely inherit under Arizona law.