An article last week in the local lawyer’s trade paper, The Connnecticut Law Tribune, discussed the increasing prevalence of wills being delayed in the probate process through complaints, objections, and full-out challenging of wills admitted to probate.
It’s not surprising, given that the economy is at the lowest point most of us have ever and will ever see. There will always be maligned siblings looking for their fair share and suspicious later-in-life will changes, but in these tight times staying silent to keep the peace may not be the option it normally would be for some left-out relatives. At the same time, there’s likely a surge in opportunists who suspect (accurately, as it happens) that most legit beneficiaries would rather pay a small, quick settlement than see their own inheritances delayed and diminished by a protracted lawsuit.
It’s an unfortunate situation for those looking to plan for when they are no longer around. It’s also a good example of why it’s so important to have your will done by an attorney, in particular one who handles a great deal of wills and probate work.
If you’re looking to cut someone off because you question their responsibility or they have significant debts, several different types of trusts can be employed to address those concerns without completely disinheriting the person. If you just want someone out, the wording must be carefully chosen to meet legal standards. Depending on the situation, it may be better to employ a “carrot and stick” tactic, where the ousted person is actually given a small legacy under the will, but which is forfeited if he or she challenges the will in court.
Later-in-life will changes are particularly susceptible to challenge in court, as relatives may claim the author was not competent to make the will, or had been subjected to the manipulation and pressure of an overbearing child or confidante. An experienced estate planning or elder law attorney can take steps to help ensure the will will be upheld in court, such as careful selection of the location and people present at the execution ceremony (will signing), choice of witnesses, and videotaping the ceremony as future evidence.
For more information, feel free to call me at (203) 871-3830 or email scott@scottrosenberglaw.com for a free consultation.
Connecticut, CT, Current Events, Elder Law, Estate Planning, Wills
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disinherit, Elder law, probate, undue influence, Will Challenges, Will Contests, Wills
I recently had the opportunity to attend a lecture by a colleague discussing the benefits of certain will clauses as illustrated by notable wills in the public record. At one point we were discussing spendthrift clauses, a common technique to withhold a benefit from someone whose creditors would just end up with it anyways, using an excerpt from the self-written will of President (and attorney) Thomas Jefferson:
“Considering the insolvent state of affairs of my friend & son in law Thomas Mann Randolph, and that what will remain of my property will be the only resource against the want in which his family would otherwise be left, it must be his wish, as it is my duty, to guard that resource against all liability for his debts, engagements or purposes whatsoever, and to preclude the rights, powers and authorities over it which might result to him by operation of law, and which might, independantly (sic) of his will, bring it within the power of his creditors. . .”
The attorney noted how beautifully written the prose of those days went, how lofty and eloquent it was. I noticed something very different, though, and very disturbing. I saw precatory language.
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How a $75 piece of paper can save you a boatload of trouble.
I was recently hired by a gentleman who found himself in a difficult circumstance. Not all that long after he and his wife had cashed their first Social Security checks, his wife had begun to show signs of forgetfulness, and in the span of just a few months had descended into moderate dementia. I was consulted to help get her affairs in order while she was still able to participate in the process, and I recommended all of the things I would recommend to any senior: a Durable Power of Attorney, Appointment of Health Care Representative, Living Will, and Last Will, but I made one more suggestion that threw him for a bit of a loop:
I suggested that getting his own health care plans in order was more important.
That’s not to say that this was the more pressing issue, but a healthy spouse’s plan does have broader consequences than a sick one’s, and it’s not hard to see why. In my client’s case, once the wife becomes unable to manage her finances and care, everyone – the hospitals, the family and the courts – will be looking to him for answers, and he’s more than capable of giving them. Should the husband have an automobile accident, or a fall, or a serious illness, however, he’s asking for an express ride down the rabbit hole in the healthcare decision process.
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With the House and Senate banging out the final version of the financial reform bill, it seems a fair guess that many people are wondering how the new law will affect their own investments, and that trustees are likewise concerned about what major consequences such sweeping legislation might have on the assets they are obligated to carefully manage. While a significant part of the bill is still up in the air, all possibilities seems to point to one answer:
None. Nada. Zilch.
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Comments Off on A Few Words on Disinheritance 
An article last week in the local lawyer’s trade paper, The Connnecticut Law Tribune, discussed the increasing prevalence of wills being delayed in the probate process through complaints, objections, and full-out challenging of wills admitted to probate.