Second Marriage? FUND YOUR TRUST! A Pour Over Will is Subject to Spousal Claims

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A Pour-Over Will is Subject to Spousal Claims

A recent case provides an object lesson for those in a second marriage who either have a trust separate from their spouse, or have retained their original trust upon remarriage.  The case is also instructive regarding trust funding in general. 

Only a properly and completely funded trust protects your estate planning choices. A pour-over will does not magically repose assets in your trust upon death; it must be probated in order to be effective, at least in most states.  Probate means risk, cost, and expense. A pour-over will is subject to the same limitations, requirements, risks, costs, expenses, advantages and disadvantages and rewards as any will created where there is not trust.  One of these risks is spousal claims.

The Montana Supreme Court held that a widow could claim a spousal elective share of the deceased husband's estate, notwithstanding that her deceased husband’s will directed everything to his trust, and, by implication, even if the trust provides a substantial share to the surviving spouse. In Silverwood v. Tokowitz (Mont. No. S-23-0114, January 12, 2024).

Carol Tokowitz was married to her husband, Neal Tokowitz, for 30 years before he died. Mr. Tokowitz left behind surviving children from a previous marriage. He had a pour-over will that funded a revocable living trust. His will did not name his wife or anyone else as a beneficiary, but, as is customary, directed assets only to the trust.

Mr. Tokowitz's executor, Mr. Silverwood, filed a petition to probate the will, suggesting that some assets or property were not owned or controlled by the trust.  Mrs. Tokowitz asserted her rights to the elective share of her late husband’s estate under the Wyoming spousal elective share statute.

An elective share is a term used to describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what s/he was left in the decedent's will. It may also be called a widow's share or statutory share, or described as an election against the will, or a forced share.  In Ohio it is governed by Ohio Revised Code 2106.01 (last accessed 2/10/2025), and is often described as a surviving spouse "taking" against the will.  In Missouri, it is governed by Section 474.160 of the Revised Statutes of Missouri (last accessed 2/10/2025).

The Wyoming spousal elective share statute provides that a married person domiciled in the state must provide a spouse at least an elective share subject to distribution in the will. If, as in this case, the surviving spouse is not a parent of the decedent’s surviving children, the elective share is a quarter or twenty-five (25%)of the estate.

The probate court granted Mrs. Tokowitz her spousal share.  Mr. Silverwood and a trustee, Randy Green, (hereafter referred to simply as "Mr. Tokowitz's family")  argued that she was not entitled to take a spousal elective share and that taking an elective share should prevent her from receiving anything from the trust. In essence, Mr. Tokowitz's family was arguing that granting her an elective share, on top of a percentage of the assets in the trust estate permitted Mrs. Tokowitz to receive more that Mr. Tokowitz intended her to receive.  Indeed, given an elective share of the probate estate, it is likely that Mrs. Tokowitz's total inheritance exceeded that which she would have received if all assets had been reposed in the trust at death.  A hypothetical illustration follows:

The probate court declined to make any ruling regarding disposition of the trust estate.  Mr. Tokowitz's family appealed. 

Mr. Tokowitz's family first argued that although Mr. Tokowitz was a Wyoming resident, he was not domiciled in Wyoming full-time.  A domicile is a legal residence where a person intends to stay. A person can have many residences but only one domicile. The Supreme Court rejected the argument.  The petition to probate the will (filed by Mr. Tokowitz's family) will stated that he was a resident of Park County, Wyoming, but the pour-over will stated that he was domiciled there. According to the court, since the will presented evidence that the decedent’s domicile was in Wyoming, Mrs. Tokowitz met her burden of establishing a Wyoming domicile. The burden then shifted to Mr. Tokowitz's family to disprove the statement in the will, and they failed to show that Mr. Tokowitz was domiciled elsewhere. According to the Supreme Court, it was sufficient that the probate court implied that Mr. Tokowitz was domiciled in Wyoming when the will was created and executed, and applied Wyoming law to determine Mrs. Tokowitz's elective share.  In other words, the probate court did not make an explicit "finding" regarding Mr. Tokowitz's domicile.    

The Tokowitz's family's next argument concerned the amount Mrs. Tokowitz would receive under the trust. They asserted that the probate court should not have given her the elective share because it did not know whether she would receive more or less than a quarter of the estate under the trust. The Supreme Court dismissed the argument holding that the trust’s terms are not relevant to the probate estate. The spousal elective share statute solely pertains to the will. Mr. Tokowitz’s will only left his property to his trust and did not name his wife, which effectively entitles her to the spousal elective share statute.

Finally, Mr. Tokowitz's family claimed that the property was not subject to probate because the will poured all assets and property into the trust. Property that passes by way of a pour-over will, however, is part of the probated estate and subject to the spousal elective share. Assets that transfer through a pour-over will are not exempt from the probate estate, or its rules and regulations simply because they estate assets ultimately repose to a trust.

The Supreme Court held that the lower court did not err when it declined to rule on Mrs. Tokowitz’s interests in the trust, holding that once the assets pass to the trust, they become non-probate assets. The Supreme Court could find no  case law or statutory authority supporting a ruling on non-probate assets in the probate case.

The Supreme Court of Montana held that the district court correctly allowed Mrs. Tokowitz to take a spousal elective share, and that the lower court rightly determined that it lacked jurisdiction to rule on claims arising from the trust.

This case became very complicated by the circumstances and the law.  One assumes the value of the assets warranted appeal to the Montana Supreme Court. All of the complexity, cost, and expense would have been unnecessary if the property and/or assets were funded to the trust prior to Mr. Tokowitz's death. 

Violence as a Consequence of an Estate Plan- Can Planning/Drafting Help? A Simple Provision in a Deceased Mother's Will Sparks a Son's Shotgun Rampage Causing the Death of Four

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https://youtu.be/2N0uuRFPngw

In this video I discuss violence, threats of violence, and retaliation as a consequence of estate planning choices, and whether planning and drafting can avoid or protect a family from such a tragic consequence.

Trigger warning: the subject matter considers heartbreaking examples of violence including death. This video reports a recent tragedy in which a simple provision in a deceased mother's will sparked a son's shotgun rampage, causing the death of four, and discusses estate planning and administration considerations to prevent similar violence and harm.

The case example discussed is from a report in the Daily Mail, "Simple request in Long Island woman's will sparked her son's devastating shotgun rampage on siblings." (last retrieved 10/10/2024). The Daily Mail article was brought to my attention by Professor Gerry W. Beyer's article, similarly titled.

The video discusses, among others, the following considerations and strategies in an effort to reduce or eliminate the threat of tragic outcomes:

• Drafting Considerations;

• Considerations Regarding Communications with Family;

• Securing Documents;

• Physical Security;

• Identifying/Reporting Threats/Troubling Behaviors, Mental Illness & Grief;

• Logistics of the After-death Family Meeting including Timing and Location.

The video highlights the importance of worst-case scenario planning, and keeping a continuing relationship with a trusted advisor with whom such topics can be discussed and considered openly and thoroughly.

Additional Resources:

• Estate Planning for the “Troubled” Adult Child, Walecka Law, P.C (last accessed 10/3/2024).
• Estate Planning for families of individuals with mental illness (neurobiological disorders), DJ Jaffe (last accessed 10/3/2024.
• Planning for Beneficiaries With Mental Illness or Addiction, Amanda Koplin, Amy Effman, Martin M. Shenkman (9/15/2020, last accessed 10/3/2024).
• How to Avoid Family Conflict with the Right Estate Planning, Hermance Law (last accessed 10/3/2024).
• Top Estate Planning Tips for the Dysfunctional Family; Doug Luftman (last accessed 10/3/2024).

Trust Can be Reformed to Change Beneficiaries

Can a trust be reformed to add beneficiaries where the trust as originally drafted fails to include beneficiaries?  According to a recent Florida trust case, a  trust can be reformed to add a residual beneficiary clause. 

In Megiel-Rollo v. Megiel, 2015 Fla. App. LEXIS 5601 (Fla. Dist. Ct. App. 2d Dist. Apr. 17, 2015), the decedent had prepared a will naming her three children as equal beneficiaries.  Some years later, the decedent prepared a revocable trust.  She also deeded her real property to the trust.  The trust, however, failed to name any beneficiaries of the trust upon the death of the decedent.  The trust, instead, stated that, upon the death of the settlor, the corpus should pass according to a "Schedule of Beneficial Interests," which was supposed to be prepared and attached to the trust.  At the time of death, no Schedule of Beneficial Interests was located.  

Of course, it not uncommon for documents (wills, trusts, beneficiary designations, and the like) and attachments to come up missing after death.  The case presents an object lesson why one should not rely upon attachments or schedules to nominate fiduciaries or beneficiaries, and should instead incorporate both in the body of the instrument, and further, why it is important to ensure the integrity of the instrument through time.  For more information regarding this aspect of planning, go here (the link will take you to series of articles regaring planning protection or vaulting).  

In this case, a dispute arose among the three children of the decedent, with two claiming that the decedent intended to name the two of them as the sole heirs, with the third child contending that the trust was void and/or could not be reformed.  Under the third child's contention, the trust would be split into three equal shares for the children. In support of the claim of the two, the drafting attorney filed an affidavit admitting that he had made a mistake and should have prepared the Schedule of Beneficial Interest naming only two the decedent's children as the beneficiaries of the trust.  Based on this affidavit and other information, the two children argued for trust reformation.

The Florida Trust Code, as of 2007, contains a trust reformation provision that allows a trust to be reformed to correct a mistake, Section 736.0415:

Upon application of a settlor or any interested person, the court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor's intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. In determining the settlor's original intent, the court may consider evidence relevant to the settlor's intent even though the evidence contradicts an apparent plain meaning of the trust instrument.

The third child argued that the trust itself failed under the "merger" doctrine, which requires that a trust have some separation of interests in the corpus.  The Court rejected this argument (internal citation omitted: 

[t]he failure of the Trust instrument to designate any remainder beneficiaries would ordinarily result in a merger is correct as far as it goes. "In order to sustain a trust entity, there must be a separation between the legal and equitable interests of the trust. If there is no separation of these interests, the doctrine of merger may apply and the trust be terminated." "If the designation of beneficiaries is deemed too indefinite for enforcement of the provisions of a trust, the usual result is that the trust is void and 'the designated trustee holds the corpus under a resulting trust in favor of the estate of the settlor.'" Based on these general principles, we agree with Sharon that--absent reformation--the failure of the Trust to designate any remainder beneficiaries would have the result that upon the Decedent's death, then Denise, as successor trustee, would hold the Trust assets upon a resulting trust for the benefit of the Decedent's estate.

The Court. then permitted the requested reformation of the trust: 

It is beyond argument that the statutory reference to "a mistake of fact or law" is not limited by any qualifiers. The broad scope of the language used in the statute is inconsistent with the notion that reformation is available to correct some mistakes in a trust, i.e., "simple scrivener's error," but not others. "[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, . . . the statute must be given its plain and obvious meaning.

Giving the statutory language of section 736.0415 its plain and ordinary meaning compels the conclusion that the remedy of reformation of the Trust is available to correct the alleged drafting error resulting from the omission to prepare and incorporate into the Trust the contemplated Schedule of Beneficial Interests. The absence of any language of limitation in the statute--other than the requirement of proof by the heightened standard of clear and convincing evidence--is additional evidence that  the legislature did not intend the construction of the statute for which Sharon contends. For this court to read such a limitation into the statute would amount to judicial legislation of the sort in which we will not indulge.

The case should comfort those that worry that their wishes may not be accurately or completely expressed in their estate planning documents.  On the other hand, others may be worried that their expressed wishes may be changed by family, friends, or advisers after their death.  Of course, proper planning, and  continued efforts to support the plan will reduce or eliminate such risks.

Most Procrastinating on Planning; Those That Plan Don't Protect Their Plans

A BMO Wealth Management survey finds 52% of adults have no will, 40% of parents have not discussed estate intentions with children, and only 28% of adults know their parents' legacy wishes. 

For those who have an estate plan in place, the survey indicates that most are not making an effort to notify heirs regarding the location of important estate planning documents.  Only one in three respondents said that their heirs were aware of the locations of estate planning documents such as a will or powers of attorney.  For married adults who had a will and powers of attorney, 25% responded that only their spouse knew where the documents were located. 

BMO sponsored the survey of 1,008 Americans age 18 and older in December.  For a more complete discussion of the survey results, go here.

BMO found that most respondents planned to leave each of their heirs equal portions of their assets, and that spouses and children were most often indicated as heirs. Yet some planned to distribute their estate unequally (between 5 percent and 15 percent, depending on marital status) or not leave an inheritance at all (between 7 percent and 20 percent).  As a result of the survey, BMO warned that such plans could cause division within families if not properly communicated to heirs ahead of a client’s death. 

Only 28 percent of the respondents said that they had estate planning discussions with their parents. Perhaps as a result, 40 percent of those surveyed felt that the distribution of their parents’ estates was unfair.

Of course, these survey results only underscore the many studies confirming what we know: most people do not plan, and those who do plan make too little effort to protect their plans.   This blog contains numerous similar reports, including the recent  New York Times report illustrating the major problems with advance directives, including that the existence of these legal documents is often not known about by medical professionals or loved ones (and even if it is, the physical location of these might not be known). 

Our clients have a convenient system that protects their wishes by vaulting them, and making them available to medical professionals and family members when necessary. LegalVault® is a great tool which allows you to securely store your advance directives and estate planning documents. Here’s how it works:

• The client executes an up-to-date General Power of Attorney for Health Care, and Advanced Directive/Living Will;

• Each document is electronically scanned, and an electronic image of each document is made (which is far superior to a copy);
• Each  client is given a secured LegalVault® account;
• Our firm uploads the image of the  documents to the client's LegalVault® account;
• LegalVault® sends out an Emergency Access Wallet Card which contains instructions for healthcare providers on accessing healthcare-related documents online or via a 24/7 fax back service;
• Once an account has been created, the LegalVault® physician notification system sends a notice to the primary care provider informing him or her of this invaluable service and the storage of advance directives, ensuring that these important planning documents never fall to the back of a medical chart where they go unnoticed for weeks; 
• Clients control what information is available to health care providers, and can quickly update the account with up-to-date documents or information (such as medications or allergies) from their home computer or smart phone;
• With the client's permission, images of other estate planning documents (Wills, Trusts, Powers of Attorney, etc.) are uploaded to the client's LegalVault® account; 
• Clients can log in to their accounts to share other non-healthcare-related documents with our firm, or even upload copies of family keepsakes (photos, home videos, letters to children, family trees, intellectual property, copyrighted materials, publications, art) to ensure these are safely secured and passed down to younger generations;
• Clients can keep or maintain important legal and financial records such as insurance policies, annuities, savings bonds, stock certificates, leases, contracts, and other instruments, potentially lost, stolen, discarded, or destroyed by third parties at a time of death or disability;
• Clients can alert authorities of significant needs or concerns, such as "disabled child at home," "pets at home," or the like;
• A separate vault, inaccessible to our firm, accessible only to the client, and an executor, successor trustee, or personal representative, can store passwords to online accounts;
• Upon renewal of the LegalVault® account (every 3,5, or 7 years) updated documents are executed, ensuring that the documents are never out-of-date.

There is no limit to the storage space available for estate planning documents, pictures, letters, financial documents, and the like.  The cost of such a service is probably less than you might imagine. Contact us if you want to add this valuable service to your estate and/or financial plan. We include the service with many new estate plans at no additional charge for the first three years.

Americans Plan Poorly- 72% Do Not Have An Updated Last Will and Testament

A Google Consumer survey by USLegalWills.com suggests that previous surveys may have under-reported the number of Americans without a Will, by not including those who have a Will that is out-of-date. The survey reported that 63% of Americans do not have a Will, showing no real change from 2014. A statistic that was not published before now reveals that am additional 9% of Americans have a Will that is out-of-date. This means that 72% of Americans do not have an up-to-date Last Will and Testament.  The survey revealed that many people have Wills crafted before they were married or had children, meaning, essentially, they have worthless Wills.  

The survey showed a positive relationship between age and the probability of having a Will:

• 18-24: 85% do not have a Will, 10% have an out-of-date Will, and 5% have an up-to-date Will;
• 23-35: 80% do not have a Will, 6% have an out-of-date Will, and 14% have an up-to-date Will;
• 35-44: 67% do not have a Will, 8% have an out-of-date Will, and 25% have an up-to-date Will;
• 45-54: 53% do not have a Will, 11% have an out-of-date Will, and 36% have an up-to-date Will;
• 55-64: 52% do not have a Will, 8% have an out-of-date Will, and 40% have an up-to-date Will;
• 65+: 35% do not have a Will, 15% have an out-of-date Will, and 50% have an up-to-date Will.

When discounting younger adults, only 37% have a Will that reflects their current financial and personal situation.

Shockingly, there is an inverse relationship between income and a person's likelihood to have an updated Will.  Persons with larger incomes are more likely to have a Will that is no longer useful.  The income group least likely to have up-to-date Wills was in the $100,000+ annual income range.  The income group most likely to have up-to-date Wills was in the annual income range of $25,000-$99,999.

There were no significant differences when comparing across gender, region, or urban density.

Graphs of the survey data can be found here.

Source: ABCNewswire, "US SURVEY REVEALS THAT 72% OF AMERICANS DO NOT HAVE AN UP-TO-DATE WILL," last retrieved July 17, 2016.

Simple Will- Complex Problems: Will Drafter Does Not Help In Case of Undue Influence

The problem with a Simple Will is that it is simple.  Simple means quick, easy, and, of course, inexpensive.  But, as with all professional services, one gets what one pays for.

Attorneys typically spend little time crafting or supporting simple and inexpensive documents, meaning that the documents are often not worth the paper that they are written on.  Consider the following case, too, when using self-help document creation like on-line services such as legalzoom, where there may be no attorney involved in preparing and executing a legal document.

A New York trial court recently determined that an incapacitated woman was unduly influenced by her agent under a power of attorney, disregarding the testimony of the attorney who drafted a Will for the woman, because the attorney spent little time with the woman and failed to even determine her knowledge of her estate. Matter of Mitchell (N.Y. Sup. Ct., No. 100163/14, June 3, 2016).

Mary Mitchell appointed Gary Shadoian as her attorney-in-fact under a general power of attorney, and health care proxy.   Mary Mitchell, a municipal employee, was entitled to free legal services under a Legal Plan provided by her employer.   Mary Mitchell may have initiated the process of preparing a Will, but after poor follow-up,  Mr. Shadoian contacted the attorney on Ms. Mitchell's behalf to complete the Will. The attorney had one conversation with Ms. Mitchell over the phone and met her once in person. The attorney allowed Mr. Shadoian to be present when Ms. Mitchell executed her will even though Mr. Shadoian was a beneficiary of the will.

After Ms. Mitchell was repeatedly hospitalized, the court appointed guardians for her. The guardians filed suit against Mr. Shadoian, arguing that he unduly influenced Ms. Mitchell. At the trial, the attorney who drafted the will for Ms. Mitchell testified on behalf of Mr. Shadoian that he did not know Ms. Mitchell was incapacitated, but the attorney admitted that he had not made even simple inquiries about her knowledge of her estate.

Mr. Shadoian testified that he and Ms. Mitchell were not romantic, and not social friends, but as a co-worker, he had over time become her caregiver.  Ms. Mitchell was not close to her sisters or other family members, as they admitted, although they testified against Mr. Shadoian that Ms. Mitchell had never given gifts to anyone, never contributed to or been a member of any social organizations, and was a spendthrift unlikely to give anyone gifts or leave her estate to anyone.  

Mr. Shadoian testified that he would drive to Ms. Mitchell's apartment after work nearly every night, and telephone records reflecting scores of telephone conversations between the two were introduced into evidence. For example, between February 17, 2011 and March 16, 2011, more than 60 telephone calls between the IP and George Shadoian were reflected in cell phone records  He testified regarding the actions and efforts he made on Ms. Mitchell's behalf.  By all accounts, Mr. Shadoian was her most intimate and longest existing contact. Those testifying against Mr. Shadoian suggested that his efforts to involve himself in her life were equally successful in discouraging or preventing others from taking an active interest in her care.

The attorney was Mr. Shadoian's only other witness.

The New York Supreme Court ruled that Mr. Shadoian exercised undue influence over Ms. Mitchell. The court determined that Mr. Shadoian's testimony was not credible, and that the testimony of the attorney that prepared Ms. Mitchell's Will "was too threadbare to carry much weight." The court was critical that the attorney "failed to make even elementary inquiries as to the actual size of the estate, her medical condition, her social and familial history. Contrary to usual practice, he allowed an unrelated person, designated as beneficiary, to orchestrate the completion and execution of the will."

The testimony of the person who should have been able to testify competently and independently regarding Ms. Mills wishes and competency was dismissed.  The free Simple Will was unforceable.  Simple.

Efforts to Change Will Without Legal Counsel Backfire

Making a will without the help of a qualified attorney can be dangerous.  Trying to change an existing will on your own can fail or have unintended consequences . A recent court decision in Minnesota serves as a cautionary reminder to anyone thinking about altering their estate plan without legal advice and counsel.

Esther Sullivan executed a will in 2006, that gave half of her property to her former employee, Tara Jean Johnson. Ms. Sullivan, left a small share of her estate to Joseph VanHale, her grandson. Two years later, in 2008, Ms. Sullivan allegedly attempted to change her 2006 will by marking up a photocopy of it and writing her initials next to each change and signing and dating the bottom of each page. She allegedly wrote on top of the 2008 photocopy, “[t]he Will dated January 19, 2006 is void and to be replace[d] with this and all written in changes.” Among the changes was that Mr. VanHale would replace Ms. Johnson as the beneficiary of half her estate. In 2010, Ms. Sullivan allegedly attempted to execute another will using a form she downloaded from the Internet. This document named Mr. VanHale as her only beneficiary.

After Ms. Sullivan’s death in 2013, the probate court had to decide which of the three wills should be followed. Mr. VanHale contended that the 2010 document was a valid will, while Ms. Johnson argued for the 2006 will. The probate court ruled that the 2008 photocopy and the 2010 downloaded document were invalid because they did not comply with the state’s requirements for a valid will, which include that the will must be signed by at least two witnesses. The court held that although Ms. Sullivan probably intended to revoke the 2006 will, she did not do so successfully. Mr. VanHale appealed, arguing that Ms. Sullivan clearly intended to revoke the 2006 will and that the 2010 document was valid.

On August 17, 2015, the Court of Appeals of Minnesota agreed with the lower court that the 2006 will should be the one admitted to probate. The court ruled that only an original will, not a photocopy, can be revoked. The court also agreed with the lower court that the 2010 document had not been validly executed.

If Ms. Sullivan did change her mind and decide that she wanted her grandson to inherit her estate, the fact that she didn’t do it properly meant that far from helping her grandson, she cost him a tidy sum in legal fees. People change their minds, and circumstances can change as well – marriage, divorce, the birth of children – and estate plans need to be revised along with these changes. If you want to alter your will or another element of your estate plan, contact your elder law attorney.

To read the court’s decision in the case, In re the Estate of Sullivan (Minn. Ct. App., No. A14– 2112, Aug. 17, 2015), click here.

170 Million Pages Why You Should Avoid Probate

"You can learn a lot about people from their wills.

You can see who was happily married and who was disappointed in their families. You can see who prized brevity and who parceled out every item as if handled by a loquacious auctioneer with lambskin gloves. 

Death may come for us all, but it doesn't necessarily still our voices." 

So begins an excellent article by Todd Leopold, writer for CNN, entitled, "Paul Revere, J.P Morgan wills among millions now online." 

The article continues:

"There's always emotion involved when someone's writing a will," said Jennifer Utley, senior manager of research at Ancestry, the genealogy company. "People make really interesting statements on how much they left people."

Ancestry has now made it much easier to research old wills, whether they're from your family or someone of historical import. The company's website, Ancestry.com, has more than 170 million pages of wills and probate records available, legal records that until recently had been accessible only offline.

Historically significant, no doubt.  These records, culled from probate courts and legal archives serve as an important object lesson; your Will is a public record.  Once filed with a probate court, it is available to anyone, and with the movement to online public records, will one day be online. If you value the privacy of your most intimate thoughts, desires, and emotions, plan your estate to avoid probate.

 

A Walk on the Wild Side of Estate Planning

Reed performing at the
Hop Farm Festival in Kent, 2011
http://en.wikipedia.org/wiki/Lou_Reed

Danielle and Andy Mayoras wonder, in an article written for Crain's Wealth, why Lou Reed, late lead singer and guitarist of The Velvet Underground, a musician and songwriter with a successful solo career, "would be so careless with his estate plan."  According to the article, probate filings available to the public paint a vivid picture of Lou Reed's estate:

Recent filings with the Surrogate's Court in Manhattan show that Reed's estate has already earned more than $20 million since he passed away from liver disease at the age of 71, on Oct. 27. This is only the income that Reed's estate has brought in since his death, primarily from royalties.

The executors filed a report recently with the court, listing the income and providing an updated inventory of estate assets. There is other property worth around $10 million in Reed's estate. Reed's wife and his sister are the primary beneficiaries, along with a half million dollars set aside for the care of Reed's 93-year old mother. Reed's widow and his sister receive 75 percent and 25 percent, respectively, of the residue, while all of the personal property and almost $9 million worth of real estate in New York will go to his widow alone.

Reed relied on a 34-page will he signed in April 2012.  Apparently Reed was aware he was suffering from liver disease, and he signed his will a year-and-a-half before he passed. 

The article continues:

Why would someone with assets worth tens of millions rely on a will, instead of a revocable living trust, if not even more sophisticated estate planning?  

That's the question that doesn't appear to have a good answer.  If Reed had used a revocable living trust, and transferred his assets into the trust during his life, then all of this information would have been kept private. That's a key difference between wills and trusts. Wills have to pass through probate court (called Surrogate's Court in New York), which is a public process. Trusts, when used the right way, avoid probate court entirely. 

While most people don't have to worry about the press leaking details of their financial worth, everyone should strive to avoid probate court. On top of being public, it's also expensive, stressful, time-consuming, and more prone to fighting.  

It's much easier for disgruntled family members to file will challenges in probate court, as opposed to a trust that is administered privately, outside of court. In fact, trusts can even help you when you are alive by addressing who and how your assets are managed if you are no longer able to do so. Wills can't help with that.

The The authors conclude that Lou Reed should have updated his plan to include a revocable living trust, thereby protecting his family's privacy, and avoiding the aggravation of probate court:

It's a lesson for everyone … even those who don't have more than $30 million. So let Reed stick to walking on the wild side when it comes to estate planning. Talk to your loved ones about the benefits of a revocable living trust.

To read the whole article, click here.

Using a No-Contest Clause to Prevent Heirs from Challenging a Will or Trust

Property of Darrellksr From Wikimedia Commons

If you are worried that disappointed heirs could contest your will or trust after you die, one option is to include a "no-contest clause" in your estate planning documents. A no-contest clause provides that if an heir challenges the will or trust and loses, then he or she will get nothing.

A simple "no-contest clause" will protect only the instrument, such as the trust or will.  An enhanced "no-contest clause" will identify and protect other estate planning decisions, such as a beneficiary designation of an annuity, retirement plan, IRA, Keogh, pension or profit-sharing plan or insurance policy,  a buy-sell agreement, a family partnership agreement, a limited liability company, or a marital agreement (pre- or post- nuptial), and may even penalize family members that conspire to frustrate the estate plan.

For more, click here to travel to my newsletter article!

Happy 18th Birthday! You'll Never Guess What I'm Getting You!

What are you planning to give the teenager in your family when he or she becomes an adult? A car, money for an apartment, a trip to Europe? Those are all fine gifts, depending on what you can afford to spend. But here’s one you may not have thought of, and the benefits could be far greater. Bring your new adult (child or grandchild) to our office, introduce us and have us prepare a basic estate planning package of documents: a simple trust or will, a durable power of attorney, a medical power of attorney, a HIPAA Release and a living will.

Actually, it’s a gift for the entire family, because once the child reaches legal age, parents will no longer be able to automatically make medical and legal decisions for him or her without the appropriate legal documents authorizing them to do so. If an adult child becomes ill or injured and cannot handle his own financial affairs, no one, not even Mom or Dad, will be able to step in and conduct business (sign checks, sell assets, etc.) unless he has a trust or a durable power of attorney and has named them as his successor or agent. If he hasn’t, they will have to go through the courts.... and that will take time, cost money, and restrict them in ways you cannot imagine.

If an adult child cannot make his own medical decisions, it will be much easier for Mom, Dad or another adult to make decisions if he has a medical power of attorney that names them as his agent. And what if he is placed on life support before they can get to the hospital? Unless he has made his wishes known through a legal document, they may not be able to have life support discontinued without court approval.
Finally, if your new adult should die without a will, the court will distribute his assets according o the laws of the state in which he lived . . . regardless of what the family or he would have wanted.

Make sure your new adult understands these documents will need to be changed as life changes-as s/he accumulates more assets, and as s/he and those s/he cares about move, marry, have children, divorce, die and so on.

Helping your children or grandchildren get started with this adult responsibility at the moment when he or she becomes an adult is just one more responsibility we as parents and grandparents have. It fits right in there with how to balance a checkbook, how to manage credit, and how to buy insurance.

Chances are, it will be a long time before any of these documents will be needed, but you’ll be sending your new adult out of the newest with a full layer of protection... just in case.