Warning Signs of a Potential Estate Battle- Final Installment
This is the final installment (see the May 6th and August 16th blogs) dealing with potential actions (or inactions) that may lead to a battle over your estate when you are gone.
LATE MARRIAGE. Marrying later in life, especially a May-December match-up can cause resentment among the heirs especially where the children are all those of the person writing the Will. Remember 27 year old Anna Nicole Smith and 89 year old J. Howard Marshall? However, it can also get dicey when each spouse comes to the marriage with children from their previous marriages or relationships. Picture this scenario: Harvey and Mabel both have children from previous marriages. Their wills (as often happens) first leave everything to the surviving spouse (Harvey’s Will leaves everything to Mabel if she survives him and Mable’s leaves everything to Harvey if he survives her), but if the spouse has predeceased then everything goes to all the children equally. After Harvey dies, Mabel makes a new Will leaving everything only to her children. So Harvey’s kids end up with nothing. This scenario can be addressed by having separate trusts, each with a specified portion of the trust estate to go to that person’s children. Another option is having a Pre or Post-nuptial agreement detailing what the surviving spouse gets.
ESTRANGEMENT OR DISINHERITANCE. Sometimes an heir will be deliberately left out as a beneficiary in a will or Trust—often for perfectly good reasons. However, that can cause issues with the disinherited heir. Initially, do not simply omit any reference to this person. The omitted person could argue that you were not mentally sound when you signed the document and did not even realize you had left the person out. You should identify all children (and grandchildren if you are leaving gifts directly to some of them). Then, if you are omitting one or more persons of the same class (children, grandchildren etc.), state why. You do not have to go into much detail. The statement can be as simple as “he has already been otherwise provided for” or even, “she is being omitted for reasons of which she is aware”. You can then be more specific with your attorney (you can even do a written statement) so that if the omitted person wants to contest the Will or Trust, the attorney can let the individual know the more detailed reasons which could become part of a lawsuit. Often this is enough to get the person to drop the issue.