Law Blog

The hallmark of any good relationship is communication.  Home is where the heart is.  Of all the things in the world that can go wrong, the one thing that you should always be able to rely on is your family.  You can always trust the ones you love.

All great sentiments, truly, they really are.  They’re clichéd, but nice nonetheless.  Sucks though that they don’t always hold up to the reality of life.  Even though none of this applies to me, as my family and life as a blogger are both perfect.  There’s a reason why half of all marriages end in divorce and why every time most people hear of the prospect of having to endure another annual family reunion at Bennigan’s causes them to hightail it to the corner store to pick up a case of Jack.

Don’t get me wrong, I’m sure everyone loves their family, in theory.  But there are just so many things that can cause a person to want to break off all ties with them.  Forgetting to pick up groceries, annoying grooming habits, obnoxious personalities, not shutting your bedroom door at night after coming in when you’ve specifically told them that the noise from the outside will keep you up and you have to get up early the next day…

Anyway, not all disputes end with a broken home, most are trivial matters that are usually resolved with a simple conversation or, at most, a jagged bread knife.  However, if I were a betting man (which according to the judge, I’m no longer allowed to be) I’d put my lifesavings on money being the main culprit in tearing families apart.  And in no situation is this truism more apparent then when it comes to wills.

Recent statistics from LegalMatch show approximately a third of all disputes involving wills come from clients asserting claims that they should’ve been a recipient in a person’s will.  Half of the cases involve heirs attempting to protect their interests against another party trying to take their interests away.  The values in these cases vary widely from a few thousand dollars to sometimes a few million dollars.

But what makes these cases difficult to resolve is that in nearly 40 percent of them no formal will was ever written, leaving the family to squabble over their loved one’s estate amongst themselves.  However, even though written wills exist in the majority of these disputes, the same issues still arise.

Sounds pretty grim, huh?  What’s a person to do, especially if you are the one who’s will such a future conflict may be concerning?  The most obvious solution is to try and talk everything out among the people involved.  Whether it’s your will or not, it’s always good to clear things up between those you love.  Because chances are unless your last name is Cleaver, your family probably isn’t perfect and there’s a lot of things that fester because they go unsaid – usually resulting in a beautifully tragic emotional explosion.

The other thing you can do is hire a good estate lawyer to write a tight and clear will.  Though it’s true in this day and age it seems like anyone can sue for anything regardless of how frivolous, a clean unambiguously written document still holds a lot of sway with the courts.  This means a well-written will not only ensures that the person leaving behind his estate gets the security of knowing his last wishes will be carried out to his liking, but that there would be less chance for those looking to modify those wishes to be successful at it.

Either that or you can just do what you want with your money now and leave those money-grubbing descendents weeping.

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.

Charitable contributions in wills and trusts are a vital source of funds for charity organizations and non-profit companies. These organizations and the money that sustains them are in turn important parts of our economy; Employees of non-profit agencies make up 7% of the American workforce, and over 83% of donations to these groups come from private donors.

Who is giving the most? According to statistics compiled by LegalMatch.com intake reports since 2006, the following states report the highest numbers of charitable contributions in estate documents:

1. California
2. Texas
3. New York
4. Illinois
5. Virginia
6. North Carolina
7. New Jersey
8. Ohio
9. Florida
10. Georgia

Charitable contributions in wills and trusts account for billions of dollars in much needed funds every year. Considering how important these contributions are, only a crazy person would want to reduce this amount, right? Well the crazy people have won, because in 2010 the Estate Tax will be repealed.

How are these related? Charitable contributions in wills are largely influenced by their generous tax benefits. Remove the tax incentive and you remove the motivation for generous giving. One study estimated that if the Estate Tax is allowed to die out next year, charitable contributions will be reduced by almost $13 billion. That $13 billion funds employees of non-profit organizations and needed social services in impoverished areas. Perhaps more importantly it does it with private money, not government funding. Pulling the rug out from under these organizations means the government (and therefore you and me) may wind up footing the bill.

In addition to problems associated with a small amount of people hoarding a massive amount of wealth, eliminating the estate tax also shifts the burden for important social services elsewhere. It is ironic that those who seek more private enterprise in areas of social services would sponsor something that lessens private giving and increases the need for government assistance. Why is the side deriding increasing government spending only making it more likely that the government will wind up spending more of our money?

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.