Law Blog

Preparing and contemplating ones own death is not a welcome thought or process.  However, what was previously a practice that simply involved drafting a will has morphed into a much more complicated process that not only plans for death but also for life.

Estate planning today rarely involves the composition of just a will but also creates trusts, guardians, powers of attorney, gifts, funeral arrangements, organ donations, and other estate planning techniques. Modern-day estate planning is not the dreaded process that it has been branded over the years mainly because it is no longer just about bequeathing property and assets to loved ones and can carry many benefits that an individual can enjoy while sill alive.

A recent LegalMatch study revealed a range of questions regarding estate planning, and how the high level of overall inquiries in this intricate legal field seems to be on the rise.  Part of this rise in interest can be attributed to the range of fields that estate planning incorporates- general estate planning, tax law, family law, complicated health care directives, and many others depending on individual circumstances.

I agree with a recent article published that catalogued some of the major trends in estate planning:

1.) Fewer estates will be taxable

2.) Careful planning to avoid probate court during incapacity is on the rise.

3.) There is an increasing concern over the wrong people gaining control over an individual’s assets.

4.) The arrangements or terms controlling the distribution of an inheritance are becoming increasingly detailed

5.) The amount gifted to charity is increasing steadily

6.) Having long-term health insurance is becoming more common

7.) Using a specialist in the estate planning process is on the rise

As the trends reveal, people are becoming increasingly aware of the need to plan for any and all possible future events. There are a tremendous amount of benefits from consulting an estate planning lawyer to planning for an individual’s specific needs and also to take advantage of the tax benefits associated with the creation of trusts and other planning tools.

According to the U.S. Census Bureau, by 2030, about 20% of the U.S. population will be age 65 or older and by 2050, this aging segment of the U.S. will represent 88.5 Million people versus the 38.7 Million in 2008. (See U.S. Census Bureau) The increasing age of the Baby Boomer population comes with a significant transfer of wealth either through wills, trusts or through state mandated intestacy laws.  And, it raises an issue concerning how prepared Americans are in developing their estate plans, whether their estate is valued in the millions or in the thousands.

Contributing to this significant transfer of assets is an increase in the number of will contests being brought today, particularly as it relates to step-families.  Children of these families are rapidly learning that the second (or third) spouse often has significant if not greater rights than the children; intestacy shares can range from 1/3^rd to as much as ½ of the decedent’s estate when there is no will.  (Before Your Parent’s Say ‘I Do’ Again)

Even when there is a will, sometimes a new spouse will change not only the family dynamics but also the dynamics of the will or family trust.  Most Americans are familiar with Anna Nicole Smith’s short-lived marriage and protracted court battles that continue even after her death. (Daughter to Inherit Mother’s Estate ).  Anna’s litigation, however, is not atypical although most people’s estate assets are significantly less than the Marshall fortune.

In fact, some children are proactively approaching their parents about their estate plans before their parents die.  SmartMoney.com profiles Neil Finkel whose 80+ year-old father placed a large percent of his multi-million dollar estate into a trust for his son.  However, Finkel’s Dad married a woman 30 years his junior. Amy, the new spouse, and Neil subsequently waged a 2-year court battle over the father’s dwindling assets which were being eroded by the spending habits of the new wife.  Although the case was settled, it’s unlikely that the rift in the family will be healed and it could erupt again after Dad Finkel’s death.  (Before Your Parent’s Say ‘I Do’ Again)

During the past five years, tens of thousands of people have used LegalMatch to find an attorney to represent them in filing a lawsuit to contest a will or to defend the estate against a will contest.  Not surprisingly, many of the most popular states for will contests have a high concentration of residents age 65+.  Plus, this top 10 state list comprises over 55% of LegalMatch’s will contest customers: 

Your will or trust will have lasting implications on your heirs after your death, particularly in those families where there are step-children or multiple spouses.  Probate litigation is generally protracted and can tear families asunder.  Developing a proactive estate plan, even if your estate assets are small, should help to reduce family tension after your death.  However your estate plan is crafted, you will be communicating a strong message to your family. The properly drafted will can stand the tests of probate court and ensure that your intent is followed after death.

As the baby boomers approach their golden years, many are planning to leave legacies and to provide for their families’ well being by drafting estate plans.  However, as I looked over the thousands of cases posted on LegalMatch, it seems that a sizeable number of wills are challenged in court. 

According to LegalMatch case data from the past 5 years, 61% of people claiming an interest in the estate of the decedent (the person who dies) involve a written will.  Most commonly, children brought these lawsuits (43%); parents (16%), grandkids (9%) and spouses (5%) were less likely to take legal action. 

So, why are these wills being challenged?  People seek to prevent or stop a will from being probated for a number of reasons.  Commonly, plaintiffs claim that:  1) the will reflects a mistake of the testator, 2) the testator wrote his will under undue influence, fraud, or duress, or 3) the testator lacked testamentary intent or the capacity to write his will in the first place.

While a minority (23%) of the LegalMatch will contests that I evaluated involved decedents who died intestate (without a written will), according to a 2007 Harris poll, 55% of U.S. adults don’t have a will or estate plan.  This trend is even more prevalent among minorities: only 32% of African Americans and 25% of Hispanic Americans have wills, compared with 52% of White Americans. 

According to the same Harris poll, however, more Americans are making living wills (also known as health care directives), perhaps in response to widely publicized disputes such as the Terry Schiavo case.  Respondents’ number one reason for not making a will?  They thought they didn’t have enough assets to worry about.  Other popular responses were:  1) I don’t want to think about dying or being incapacitated, 2) I don’t know who to ask about drafting a will, and 3) procrastination. 

While crafting your will to withstand legal challenge may seem complicated, a good lawyer should be able to do this competently.  However, there is one simple thing that all laypersons can do: make your will accessible!  I found that 17% of LegalMatch will contests indicated that the parties did not even know if a will existed!  Remember, even the most carefully drafted will won’t do a bit of good if it can’t be found. 

Maybe the knowledge that their children will most likely be the ones to hash things out in court will motivate parents to start drafting their wills with care.  Also, while it’s troubling to know that so many people leave their estates unsettled, it’s also comforting to know that legal action can be taken even if the decedent fails to leave a will or alert his loved ones that a will exists at all.