Every Spring, when the snowbirds have returned to New York, your lawblogger gets a rash of inquiries about trusts. Some folks are absolutely insistent but don’t really have a good explanation for this. I usually ask at this point which Florida clubhouse ran the program where they suddenly realized they must have a trust. An excellent article in Forbes Magazine will enlighten you and may answer your questions as to whether or not you should be trusting a trust. Start with a well-drawn Will. Then determine if you require a trust to meet your financial planning needs.
An article in today’s New York Times sheds some interesting light on powers of attorney and their sometimes unforeseen drawbacks. Your lawblogger thinks it is well worth a look.
The Do It Yourself legal industry is flourishing with claims that you do not need a lawyer to get your affairs in order with a low-cost DIY will. Just input your credit card information, download the easy to use form, fill in the blank spaces and seal it in an envelope in anticipation of Judgment Day. $29.95 will get you the security of knowing that you have made your Will and have not had to lay out huge sums of money for an attorney.
One of the major features of the Surrogate’s Court is that it is a court of public record. Unfortunately, that can be one of its major drawbacks. Every document filed in every estate is available to anyone. If your grandfather (great grandfather) passed away here in the twenties, his Will together with lots of information about your family is there for all to see. Great if you are a history buff or looking for information about your ancestors but not so great if you would like to keep private stuff private. An example of this can be seen after the recent celebrity deaths of Philip Seymour Hoffman, Lou Reed and James Gandolfini. All of the minute details of their estate planning (or lack of same) are on public display.
In her last public interview in 1994, Jacqueline Kennedy Onassis stated that her most important accomplishment in life was to insure that her children loved each other. Your lawblogger has taken her words to heart over the years. As a litigator practicing in the field of contested matrimonials and contested estates, I can definitively state that nothing matches the intensity of an estate contest between siblings. This is an opinion laid out recently by Patricia Davidson in the MetroWest Daily News.
Sibling rivalries have roots that often run deeply into childhood. "Mom always liked you best" festers for generations until both parents have passed away , when it explodes with all the fury that adult children can muster . The more money they have to pay counsel, the harder they can fight.While family businesses worth millions may be at the center of the battle, it is amazing at how trivial some fights may be.
The time to avoid an epoch estate fight is when your children are young. Follow Jackie O’s lead and make damn sure they love each other. See a therapist if you cannot figure out how to do this yourself. In the end, you will have happier kids, you will be happier, and you can go to your eternal rest assured that what you have taken a lifetime to build will not be squandered in meaningless litigation.
A power of attorney is a powerful document posing some danger to the holder. It is common to receive a power of attorney from an aging parent or relative in order to help them handle their personal affairs. In effect, it allows the holder to stand in the shoes of the giver and act as though he or she was that person as far as the outside world is concerned, but a world of trouble lies in wait for the unfortunate who fails to properly use the power.
In order to commence estate proceedings, it is first necessary that all persons essential to the estate receive notice. This would include any person named in the will or anyone who would have standing to object to the will. If there is no will, it would include all distributees — next of kin who would inherit pursuant to intestacy. In order to streamline the proceedings , a lawyer representing the petitioner seeking to be either the executor or administrator will start by mailing a waiver to every necessary person .
Every will drafted by an attorney is almost certain to have a residuary clause. This is an essential catch-all provision inserted to make sure that assets go where they are supposed to go. Here is an article by Dennis Fordham in the Lake County (California) News which provides useful information on this important provision of a will.
Your will should not be a do it yourself project. Here are some things to avoid doing when it comes to your will.
1. Do not make changes to your existing will by crossing out provisions and inking in your own new ones. In New York, the probate clerk will examine a will for alterations. A provision which has been stricken from the will with a new term inserted by pen or pencil will simply be ignored in favor of the original. If a portion of the will is blacked out with a marker, the entire will is going to be invalidated and the testator will be intestate.
2. Never make a copy of your signed will. This is an invitation to mischief after you are gone since a photocopy can ultimately be admitted to probate. This can lead to a situation where an interested, if less than honest relative may find both the photocopy together with the original of your latest will. If the photocopy treats that person better than your later will…..just guess which is the one to actually be brought to a lawyer to be offered for probate!
The New York Times has published a rather comprehensive, if brief, overview of trusts. For those of you who find all of the acronyms we use to describe various trusts, this may prove to be very helpful.
your lawblogger would add a little postscript to this article with regard to the issue of whether of not you are considering naming a bank as your trustee. First of all, this should not even be considered if your trust is not worth at least several million dollars. You should also consider that once you appoint a bank to serve as your trustee, this appointment will be more or less written in stone after you have passed away and the trust is established and funded. The problem is that we tend to select a bank based upon the quality of its trust department. The trust officer who has attracted you to the bank when your trust is drafted may well be long retired when the trust is funded. The quality of a trust department may decline as well so you will never be assured that your heirs will have the benefit of the counsel of the bank/trustee you select for them today. For a high net worth trust, best to spend time with your financial advisor and pick the trustee or trustees best suited for you in the long run.