Tag: wills

“We only got the bank account:” Why Property Titles and Beneficiary Designations Matter.

October 8, 2024 / David Russell

My father passed away four months ago. Our mom had preceded him in death by several years, and three years ago, Dad married 'Jane' when he was 71 years old. After they married, Dad told me and my siblings that his will left everything to us. At that time, he had about $300,000 in the bank, a company retirement plan worth $800,000 and the house we were raised in. He sold the house after he and Jane married and bought a condo. Now the lawyer tells us that we're only getting what was in the bank accounts. Dad didn't change his will, so how could this have happened?

Jan M.

The loss of a loved one is a challenging and emotional experience, often compounded by the complexities of navigating their estate. This scenario underscores the vital role that legal title and beneficiary designations play in determining who receives property after someone’s passing. Understanding how assets are titled and the impact of federal laws such as the Employee Retirement Income Security Act (ERISA) is essential in estate planning.

Mom leaves more to one child than another: what could go wrong?

September 10, 2024 / David Russell

Three years ago, my mother moved in with me and I became her full time caregiver. Last year she changed her will to leave more to me than my sister who hasn't done anything for her care. In fact, she hasn't spoken to mom since she moved in with me. I don't get paid for providing care, but I do use her social security check to help pay for household bills and groceries. Aside from that, mom has a sizeable stock account that she inherited from our dad. I'm worried my sister may cause trouble when mom dies and learns she doesn't get as much as I do. Should I ask her to change her will to be more equal?

Esther B.

I can sense the unease in your voice. As caregiver for your mother, it makes sense that she might favor you in her will, especially if your sister isn’t interested in a relationship with your mom. While your question is more about what happens after your mother dies, my hope is that there will be opportunities to communicate with your sister before that happens, resolve the rift between her and your mother, and avoid the potential conflicts that may arise. Ultimately the decision to accept the provisions of your mother’s will is hers.

That said, let’s discuss some practical issues to address your concerns, minimize legal complications, and discourage potential disputes with your sister when it comes to your mother’s will.

Understanding the Legal Framework

First, it’s important to ensure that the change your mother made to her will is legally sound. The will must have been updated at a time when your mother was fully competent and free from undue influence. Consulting an estate attorney can ensure all legal protocols were followed, thus making it less vulnerable to future challenges.
Was the change made with the assistance of an attorney? Although it’s not a requirement, using an attorney to execute legal documents like wills can avoid the mistakes people make when doing it themselves. Often, people will write a will in their own handwriting (called a holographic will). While these may be valid, these types of wills are easily disputed and may not have followed the procedures for valid will executions in the state where the person resides.
Assuming your mother did use a lawyer, and at the time did possess the capacity to execute a new will, who was present in the room with your mother’s lawyer when she changed her will? Just your mother? You with your mother? Only you? Ideally, it was only your mother. If you were present, did the lawyer directly address your mother or direct questions to you? The less your involvement in the meeting, the less likely you could be open to accusations of undue influence.

Guarding Against Will Contests

If your sister decides to contest the will, she could potentially claim undue influence or argue that your mother lacked the mental capacity to make such a change. To prepare for such scenarios, work with her attorney to maintain thorough records of the discussions and motivations behind the will’s adjustments. This documentation reinforces that the decision was made independently and with full awareness.
Did your mother include a no-contest clause to her will? Known as an in terrorem clause, this can discourage your sister from contesting the will, as she risks forfeiting her inheritance if she loses the challenge. While this is not enforceable in every jurisdiction, where applicable, it serves as a strong preventive measure.
A letter of intent can also be included, detailing your mother’s reasoning behind her decisions. This document, although not legally binding, provides context that could be useful in defending the will against disputes. Sometimes, these are prepared by the person creating the will, but the attorney may also provide this service.
Keeping detailed records of your caregiving responsibilities and related expenses is crucial. Not only does it validate the more substantial inheritance in compensation for your caregiving role, but it also provides a clear, factual basis for the distribution decision should your sister challenge it.

Proactive Communication and Mediation

Facilitating open communication with your mother and sister could be beneficial. If your mother is comfortable, hosting a family discussion where she shares her reasons for the will’s changes may help your sister understand the context and reduce tension. Transparency often alleviates suspicions and pre-empts conflicts.

If direct communication seems difficult, consider bringing in a professional mediator. A neutral third party can help facilitate productive discussions and address any underlying concerns or grievances. This proactive step can prevent more heated disputes down the line.

Engaging a Professional Team

Engaging the right team is critical. Not only can a team of professionals provide advice and counsel, but their presence and involvement demonstrate that you are not acting alone in managing your mom’s affairs. If her lawyer does not specialize in estate planning or elder law, you can look for one near you by visiting the National Academy of Elder Law Attorneys. Other team members might include a geriatric care manager, financial planner, or family counselor.

By addressing these issues now—through open communication, legal safeguards, thorough documentation, and professional advice—you can reduce the likelihood of disputes and honor your mother’s wishes effectively. While it’s a challenging situation, approaching it with preparation and empathy can help maintain family harmony and respect for everyone involved.

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5 Reasons I Regret Filing A Will Contest

February 27, 2020 / drussellcfp

When a family member has died, it can add insult to injury to learn that you were cut out of the will. Contesting the will is likely an initial thought. We talked to people who have filed will contests, and came up with the top 5 reasons I regret filing a will contest. The reasons are:

I was not honest about my relationship with the decedent.
A will contest is more stressful than I realized.
I was not realistic about decedent’s mental and physical condition.
I did not have a clear idea of what I was fighting over.
I did not realize how much a will contest would cost.

For a breakdown of each of these five reasons, follow the source below.

Source: 5 Reasons I Regret Filing A Will Contest | Probate Stars

How often should legal documents be reviewed?

August 30, 2019 / drussellcfp

Once a legal document is completed and signed, it is often carefully laid to rest in a safe deposit box or file drawer and comes out again only when a party dies or a conflict arises.

Prudent persons periodically review and update their legal documents. Just how often depends, of course, on the document and which circumstances have changed. The following list sets forth some events that may require the updating of a legal document.

Life Events

● Marriage.
● Dissolution of a marriage (divorce).
● Death of a spouse.
● Disability of a spouse or child.
● A substantial change in estate size.
● A move to another state.
● Death of executor, trustee or guardian.
● Birth or adoption.
● Serious illness of family member.
● Change in business interest.
● Retirement.
● Change in health.
● Change in insurability for life insurance.
● Acquisition of property in another state.
● Changes in tax, property or probate and trust law.
● A change in beneficiary attitudes.
● Financial responsibility of a child.

If there is any question as to the effect of a change in circumstances on your will, trust, buy-sell agreement, asset titles and beneficiary designations, etc., contact the appropriate member of your team and have it reviewed before a crisis arises.