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Wills and Trusts: An Excerpt from 'Da Vinci's Baby Boomer Survival Guide'

By    |   Friday, 23 Jan 2015 03:12 PM

Excerpted from the book Da Vinci’s Baby Boomer Survival Guide: Live, Prosper, and Thrive in Your Retirement by Barbara Rockefeller & Nick J. Tate

Wills and Trusts


No one is immortal. Everybody dies. We all know that, and yet a very large percentage of people (over half) choose not to draw up a will — even a hand-written, makeshift version. Dying without a will is referred to as dying “intestate,” and invites the state government to poke its nose into your business. In fact, a will is a person’s instructions to the government — a judge — on how to distribute his property. You may think it’s the choice of the person’s family, but that is true only in cases where there is very little property involved. In most other cases, and especially when there is a lot of property, the state gets to decide on behalf of the survivors and the estate.

We have all heard horror stories of people dying intestate and the courts taking decades to distribute the property. Jimi Hendrix’ estate took thirty years to settle. Pablo Picasso’s estate took six years and cost $30 million. The most famous person to die intestate was Abraham Lincoln, and he was a lawyer.


Why Do People Fail to Prepare for the Inevitable?


Avoiding writing a will doesn’t keep your heirs out of the legal system — it just makes it harder for them. Wanting to avoid the legal system is understandable; we all know (or think we know) it’s expensive, time-consuming, and often doesn’t deliver justice due to legal trickery on the part of corrupt attorneys. A famous story details our disdain for lawyers: Marilyn Monroe’s estate took in $1.6 million from movie royalties from her death in 1960 to 1980. Her heirs got $101,229, her creditors got $372,136 and the lawyers got over $1 million. That’s why we hate lawyers.

Survey research from Pew finds that lawyers are the most despised professional in the United States, followed by corporate business executives and journalists. In all three instances, the professional is seen as heartless and out for himself at any cost. We revere the rule of law (over the whims of men) as a foundation of democracy, but we abhor lawyers.

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Get over it… and beat them at them at their own game. One of the revolutionary advances of the baby boomer generation is to fight back against “authority,” in this case the legal profession, by educating themselves. A good way is to use do-it-yourself legal forms in order to become familiar with the requirements, process, and jargon of will-writing.


Dying Without a Will


If you die intestate (without a will), the state will determine who gets your property — almost always your spouse and children, or other closest relatives, starting with your brother or sister. If you do not have relatives that can be found, your property goes to the state. If you have minor children and no spouse, the probate judge will decide who gets the responsibility of caring for them.

Right away you can see how probate issues can become horribly tangled. Probate is the term describing the legal process of transferring property from the “estate” of the deceased to the parties named in the will, and it starts with determining whether the will is valid. The probate process is a checklist of items that have to qualify under the law and satisfy the probate court judge. Debts and taxes have to be paid before the heirs get their inheritance, so, for example, if your brother lent you $100,000, and the liquid as- sets in the estate are worth less than $100,000, your brother could conceivably ask the court to force your spouse to sell the house to get the money to repay the debt. Of course, your brother would have to prove to the court that the debt existed in a correctly documented manner.

Probate laws are state laws, not federal laws, and as a general rule, your property will be probated in the state in which you re- sided. Your stock portfolio may technically be located in the city where your broker is headquartered, but for probate purposes, it is considered to be located in the state where you lived. Real estate is an exception. If you live in New York State but own a cabin in Maine, the cabin has to be probated in Maine. Let’s say you left the cabin in Maine to someone not related to you, or to someone “less related” than your daughter or son, like a cousin’s child. The daughter or son may have the right to contest the will in Maine under Maine probate law.

Lines of succession — who inherits and in what order — vary from state to state, although many states have adopted something named the Uniform Probate Code (UPC), whose purpose is to simplify and standardize the processes and rules of distributing the property. One aspect of the Uniform Probate Code is protection of spouses and children, who are entitled to some minimum amount of the property even if the writer of the will tries to cut them out entirely. Think of a case where a man has divorced his first wife with whom he has children, and remarried. He wants to leave everything to the second wife and children and nothing to the first wife and children. In most instances, this would not be allowed. Or a person has adopted another adult and wants to leave everything to this adopted person and nothing to his real biologi- cal children. Such a will would be contestable under the UPC.

The UPC was adopted in full by 16 states, and many of the other 34 states have adopted some aspects of it. Note that in all things legal, Louisiana is an exception, with its laws based on the Napoleonic Code. The 16 states are Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota, and Utah. If your will is going to be probated in a state that has not adopted the UPC, you can look up specific provisions by Googling “probate” and the name of your state. That will take you to the probate court website.

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Every state has rules defining how small an estate has to be to avoid probate. The amounts vary all over the place, from $50,000 in Arizona (personal property like a checking account and jewelry, not including real estate, which is called “real property”) to $200,000 in Wyoming. You can get a state-by-state shortcut listing at the always useful Nolo.com (Nolo.com/legal-encyclopedia/ probate-shortcuts-in-your-state-31020.html). When the amount of property is small enough to qualify for unsupervised administration, the representative (usually the spouse or family member) submits a simple declaration to the court. If the estate is uncontested, that’s it — probate is avoided. In practice, in the absence of anyone contesting the distribution of property, states do not chase down an heir who doesn’t submit the declaration to the court.


The Essence of a Will

The essence of a will is defining what you want to happen to your money, property, minor children, and pets when you die. If you fail to define your wishes with absolute clarity and in terms that would be impossible to misinterpret, anyone wanting to contest the will may get enough of a foothold to legally challenge it. It seems obvious that if you don’t like a blood relative and that person would be next in line to inherit from you, you should take some action to get your way — not what cultural history or the law might dictate. A will also allows you to name the person who is going to carry out your wishes — the executor, or representative to the court. If you neglect to name an executor, in most cases the state takes over that function by appointing a lawyer to do the job, to be paid out of the estate (with outcomes you possibly wouldn’t have approved of ).


Writing a Will

The conditions of a valid will are few but fixed — they must be met for the will to be valid.

1. You must be of sound mind. Unless you are confined to a mental-health facility or someone contests your will on the grounds you were of unsound mind, the state is willing to believe that you were “of sound mind.” While soundness of mind is the default assumption, extreme old age (90 to 100+) is sometimes used to challenge wills, on the grounds that anyone that old must be mentally incompetent to some degree.

If there is any question as to one’s mental state at the time the will was executed, a letter from a medical professional is useful. The crux of the much publicized case of Mrs. Brooke Astor was whether she was mentally competent to have signed changes to her 2002 will in 2003 and 2004. She was 100 years of age in 2002, but falling prey to dementia, and the changes to the will were deemed inconsistent with the intent of the original will. The court determined she had been tricked by her son into signing later versions while of unsound mind. The trial jurors convicted the son, who was himself 85 at the time, on 14 criminal counts, including fraud, and Mrs. Astor’s estate lawyer was convicted, as well, of conspiracy, scheming to defraud, and forgery. In the end, the state attorney general used a combination of wills, including one from 1997, to settle Mrs. Astor’s estate.

Judges rarely want to declare someone mentally incompetent, but someone challenging the document may prevail by demonstrating with a “preponderance of the evidence” that the person lacked the mental capacity to sign a valid will. Preponderance means that the case for unsoundness is greater than the case for soundness, and both sides usually present witnesses, medical records, and doctors’ testimony. In the Astor case, it was the grandson challenging the last version of the will and bringing forth witnesses, including long-time friends and medical professionals, to prove that Mrs. Astor’s mental capacity had deteriorated significantly by the time of the signing of the 2003 and 2004 versions.

How do you prove you are of sound mind, and thus qualified to sign your will, especially if you are eccentric or sometimes forgetful? The key is that you know what the will means — that its purpose is to distribute your property after death. You also must know the property that is at stake and the names and relationships of the heirs. You will is valid though you may have wild opinions and prejudices, you are illiterate, or you are so physically feeble you can barely write your name. The will of an alcoholic or drug addict is valid as long as he was not under the influence at the time of signing. These are drawbacks to, but not signs of “testamentary incapacity.”

2. You have to sign and date the will in the presence of two witnesses, who then put their own signatures and date. Some states require three witnesses. The witnesses don’t have to read the will, but in most states cannot be heir to anything in the will. Wills do not have to be notarized, but it’s not a bad idea to do the multiple signings in the presence of a notary and pay the nominal fee to get the notary stamp and seal it if you expect a challenge, or if the local probate court is particularly persnickety. It can’t harm and might help.

What about a “holographic” will? This is a will written entirely in the person’s handwriting and signed and dated. Twenty-six states recognize holographic wills as valid, with most states not requiring a witness, and sometimes not even requiring the date. Despite the fact that roughly half of the states find such a document valid, it is always better to err on the side of caution by hiring a professional to handle the legalities, especially when assets and heirs are numerous. Though it is recommended that one seeks counsel when executing any legal document, you do not necessarily need a lawyer to write your will. With cases involving a complicated family situation or property you want to distribute unconventionally, however, it is always best to consult a lawyer.


Changing and Revoking Your Will

No sooner have you completed your will than your favorite grand- daughter admires a painting on your wall and you decide you would like to bequeath it to her. This means you have to add an amendment, referred to as a “codicil,” to your will. The problem is that you have to go through signing in front of two (or three) witnesses all over again, and inherent in the codicil process, of course, is that you are still of sound mind and not been subject to undue influence.

If you elect have an entirely new will drafted, you must have the previous document revoked, or “repudiated,” which is done by literally shredding or burning it. Don’t leave it lying around for heirs to squabble over. Multiple wills are the stuff of Agatha Chris- tie whodunits, not modern life.

“Undue influence” is a factor increasingly at the forefront of disputes over wills as a form of elder abuse, as in the Brooke Astor case. Undue influence is carried out by a person in a position of power over another, like a caregiver or care-giving relative. The influence can range from manipulative flattery to any other form of persuasion that overwhelms the free will of the will-writer. Undue influence is less harsh than duress, which includes blackmail and the threat of force or use of force.

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Undue influence is tricky. One element is that the will-maker has to be proven to have been susceptible or vulnerable to per- suasion, which is walking a fine-line with respect to the mental-soundness criterion. A person who is psychologically or physically dependent on another might be considered susceptible to undue influence. The second factor is opportunity, and that typically arises in the form of a confidential relationship. Obviously a confidential relationship exists between husband and wife, parent and child, etc., so the opportunity factor is most suspicious when the undue influence is exercised by a guardian, doctor, pastor, or other non-family party.


Contesting a Will

Courts rarely declare a will to be invalid, but challenging a will can get a court to change some of the provisions. The law does not al- low anyone, other than a presumed heir (in the case of an intestate death) or a named beneficiary of a will, to challenge a will. This keeps strangers from claiming to be long-lost relatives. The only way a person can challenge a will after not being presumed an heir or named is to charge “tortuous interference,” meaning the testator was influenced to reduce or eliminate the inheritance.

The four reasons to contest a will are:

1. The will was not signed according to state law.
2. The testator lacked the mental capacity to sign a will.
3. The testator was unduly influenced.
4. The will was fraudulently procured.


Your fortune, not matter how great or small, is far too precious to be left in the hands of the state. To be sure your wishes carried out to the letter, keep these “do’s and don’ts” in mind:

DaVINCI DO’S

• To save your heirs the red tape, take the time to know your state probate laws. For smaller estates, refer to Nolo.com/legal-encyclopedia/probate-shortcuts-in-your-state-31020.html for state-by-state details.
• Although holographic (handwritten) wills are recognized in 26 states, it’s always best to have an attorney draft your will. As well, do-it-yourself templates are a good starting point, but the final product should be left to a professional.

DaVINCI DON’TS


• Never choose a trustee or executor out of obligation or guilt. Instead, pick someone you are certain will be fair, objective, and impartial.
• If you have had your will amended, don’t forget to destroy all previous copies. Old versions could cause undue strife and even feuding among your loved ones.

Excerpted from the book Da Vinci’s Baby Boomer Survival Guide: Live, Prosper, and Thrive in Your Retirement by Barbara Rockefeller & Nick J. Tate. ©2015 Humanix Books

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Everybody dies. We all know that, and yet a very large percentage of people (over half) choose not to draw up a will — even a hand-written, makeshift version. Dying without a will is referred to as dying “intestate,” and invites the state government to poke its nose into your business.
wills, trusts, da vincis, baby boomer, survival guide, rockefeller, tate
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2015-12-23
Friday, 23 Jan 2015 03:12 PM
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