WAR STORIES: A LITIGATOR’S PERSPECTIVE UPON ESTATE PLANNING
I. Chaos. Time delay. Needless costs. Unnecessary taxes. Frustration. Fear. Insecurity. Litigation. Too often such is what people leave their loved ones. We’ve seen it all.
II. War Stories.
A. He Wanted Control.
The loving relationship between an elderly husband and wife, who owned substantial farmland, had always centered upon husband attending to all of the couple’s affairs, with wife serving a very dependent role of homemaker, mother and wife. Wife did not have a driver’s license, did not know how to write a check, etc. because the husband, a very controlling type, took care of all of their business needs. When husband died, leaving A/B trusts which allowed income and use of principal to the wife, but the right to an ex-son-in-law to farm the farm ground for many years into the future using all of the farm equipment that the trust was required to repair and replace, little income remained for the wife as the son-in-law failed to keep good care of the equipment and failed to farm in a good husbandry manner. The trusts eventually spent quite a goodly sum buying out the ex-son-in-law’s rights. Ultimately, the wife, in failing health and not accustomed to handling her own affairs, gave control of her own estate to an unscrupulous daughter who quickly dissipated her mother’s assets.
B. The Orphan.
Mom and Dad had one minor child left at home. After Mom’s death, the child spent much of her time with her quite elderly grandma. When Dad subsequently and suddenly died leaving no named guardian for the minor child, litigation ensued amongst grandma and other family members as to who should be appointed as guardian of the minor child.
C. Too Presumptuous.
Reluctant to make a will or execute powers of attorney, Husband, a healthy, elderly man, finally did do so at the urging of his family members. He refused, however, to inform his family that he had in fact done so and insisted that our firm hold the documents in safe-keeping. One Saturday as a life-death decision had to be made for the Husband who had suffered a severe stroke, only the son-in-law’s recollection of Husband having mentioned being in our office allowed the family to reach us and locate Husband’s Health Care Power of Attorney.
D. For the Good Times.
Several years ago, as Husband and Wife grew less able to care for themselves and their affairs, they looked to Wife’s son for help and assistance. Once Wife moved to a nursing home, two distant nieces took a sudden interest in their somewhat confused and despondent uncle, to the point of first moving him from the house without notice to Wife or her son, gaining agency powers over their uncle and his affairs, and then causing most of his accounts, all of which would have passed, at least in part, to others at his death, to pass to the nieces instead. Another family member is still litigating a recovery of those assets for all of those to whom the uncle had intended his assets to pass.
E. Not Planning for the Worst.
The decedent left no will and litigation ensued amongst the quarrelling family members as to who should serve as the administrator of the estate. Declining to appoint any of the family members and unable to find a local bank willing to serve, the court appointed my partner.
III. The Unexpected: It Can Happen to You.
If you don’t think something bad could happen to you, take a tour of a rehabilitation center or go and sit in an emergency room for a day. Think of the acquaintance, friend, or family member whom you knew that just suddenly and recently passed. The unexpected can suddenly happen.
IV. Estate Planning
Such war stories need not be the inheritance and memories that you leave your loved ones. Current and proper estate plan brings peace of mind to everyone concerned because they know things are in good order for when disability or death occur. Work with your attorney and be prepared.