When I refer to a “probate case”, I am talking about any situation where someone has died and now someone else is now in my office.

In these situations there are 3 main areas I ask questions about.  I can’t think of a situation where these questions would not be asked.  Ask these questions helps me figure out what may need to be done, helps me analyze possible scenarios, and helps me decide whether (and on what basis) I would consider getting involved.  Here are the 3 questions….

  1.  IS THERE A WILL?
  2. IS THE SITUATION FRIENDLY OR UNFRIENDLY?
  3. AM I BEING ASKED TO REPRESENT THE FIDUCIARY, OR SOMEONE AFFECTED BY WHAT THE FIDUCIARY DOES (OR DOESN’T DO)?

 

IS THERE A WILL?  Sometimes it’s not so simple.  Maybe we only have a copy?  Maybe the Will is questionable?  Maybe the Will was revoked?  Maybe we can’t locate the Will?Whatever the story is, I want to know any issues about a possible Will.   Sometimes the answer is a clear “there’s no Will”.  So be it, and we know we are doing an Administration under the laws of intestacy.   But at least we have square one covered…

 

IS THE SITUATION FRIENDLY OR UNFRIENDLY?  Contrary to what many people think, very often these situations are friendly.  That being said, even friendly situations require identifying and locating all the people whose written consent may be required.  This is true whether there is a Will or not.  Anyone who has a possible legal interest must be accounted for in the Court filings, or a fiduciary cannot be appointed.  So, in a friendly situation we would have the interested (friendly) parties sign the right papers (usually a “Waiver & Consent”) for whatever is going on.  If some interested party is unfriendly, I want to know what the problem is.  We can proceed even if there is unfriendliness, but we will have to put those folks on notice (usually with a Citation), knowing they may show up in Court and have something to say.  So be it, we can prepare accordingly…

 

AM I BEING ASKED TO REPRESENT THE FIDUCIARY, OR SOMEONE AFFECTED BY WHAT THE FIDUCIARY DOES (OR DOESN’T DO)? – Very often the person who contacts me is not the fiduciary.  In fact, they contact me because they have questions about what the fiduciary is (or isn’t) doing.   In those cases I ask first about #1 and #2.  I ask about the Will because I want to know what their interest is….a fixed dollar bequest?  a percentage?  an intestate share?  I ask about #2 because rather than assume things are very unfriendly, that is not always the case.  Sometimes nobody has actually asked the fiduciary (m)any questions.  While the fiduciary should have volunteered the info, a clear and polite request from an attorney will often get a useful answer.  Sometimes, it’s only a little unfriendly and things can be resolved with some level of inquiry.  And of course, sometimes it’s VERY unfriendly and the fiduciary is a dastardly sociopath.  In those cases you have to be prepared for ANYTHING.  I’ve been there, and getting involved is sometimes a bad choice.  It’s a choice I make VERY carefully, and if I sense insanity on the horizon, I say NO and never regret it.

Anyway – that’s how I approach every new case.  Three main issues, once we talk about all three I’ll have a good idea of what the options and scenarios are.

BTW – I would NEVER quote a fee, flat fee, hourly fee, percentage, or any other fee, without thoroughly discussing the 3 issues.  It would not be fair to a potential client and it would not be fair to ME (something I DO consider).

Comments and questions are always welcome!!!

 

 

WHO SHOULD MAKE A WILL AND WHY DON’T THEY?

What happens when a person dies without a Will? Contrary to popular misconception, their assets do NOT “go to the State”.  Their assets go to “family members” under the State’s laws of intestacy.  So, the question any sane person with assets should be asking is “Who would inherit from me if I don’t make a Will”.

If the answer to that question is not what the person would want, THEY SHOULD MAKE A WILL.

Which leads to the question….WHY DON’T THEY???

WHY….do people who have no close family, and who think their distant relatives “don’t care about them”, frequently neglect to make a will, die with a lot of money, so these same distant relatives inherit their money?

WHY…..when people who have “nobody to leave my money to”, why don’t they make bequests to friends?  or charities?

WHY…..do some people put off doing something they know they SHOULD do?

Here are 10 reasons I’ve seen:

  1. Procrastination as a way of life.
  2. Fear of tempting the evil eye.
  3. Not being able to decide who should inherit (or waiting to see who deserves it.)
  4. Not wanting to spend ANY money to take care of this “discretionary” item.
  5. Not wanting to discuss their personal business and/or finances with anyone.
  6. Thinking they’ll do it later, “when they need to”.
  7. Under valuing their assets…this usually happens when there is a house and no liquidity.
  8. Thinking they have all their assets passing directly, so a Will would be moot.  Sometimes this is true, but usually not.
  9. Guilt related to what departed persons (parents or grandparents) would think about what they want to do.
  10. Simply being a selfish, self-centered narcissist who doesn’t care what happens when they are gone.

One could probably write a book, or at least a blog post, about each of these.  I will not do that here.  I will simply note that each of these reasons raise questions that anyone who has ANY of those thought patterns ought to consider,along with my initial question “Who would inherit from me if I don’t make a Will” AND “How would that result sit with me for eternity IF I DIED TOMORROW”?

Eternity is a long time.

 

Sometimes people write down their wishes or give written directions regarding what they want done after they die.  Sometimes they even call it a Will.

Will these be considered a Will?   NO

Sometimes people who would benefit from such writings ask me, as a lawyer, to bring these writings to the Courts attention.  They are essentially saying “Surely the Court will give SOME weight to the deceased person’s written statements.”  Will I make this argument?  NO

In New York, the only writings that will be considered a Will are those that fit the definition of a Will.  Briefly stated, “signed at the end in front of two witnesses”.

Not one witness.

Not “notarized”.

Can LegalZoom and other home made Wills qualify as Wills?  YES, if they meet the definition of a Will.  Most home made wills, where people have researched how to do it, actually turn out to be Wills.

But many attempts to make a Will, or related attempts to give directives after a person dies, FAIL.

When I see this, especially when the attempt looks legit, it’s pretty tragic. Sometimes it’s tragic because of the amount of money involved.  But even worse is the idea that the person wanted something done which would help somebody they cared about, and it isn’t going to happen.

I won’t take a case where we would be trying to make something a Will that isn’t, or try to convince the Court to do “the right thing”.  My advice in those cases is to tell the client to contact the people who benefit from the writing not being a Will and ask THEM to do the right thing.  Oh…and be nice when you ask.  Does this ever work?  Rarely, but when reasonably nice, honorable, ethical people are involved, sometimes they work something out.

More often though, such situations result in a hurt that lasts a lifetime.

In consideration of the above, if someone wants to “get their affairs in order”, they should do it right.  If you know someone in that situation and they need help, by all means HELP THEM.

Do I think the right thing is to encourage them to have a lawyer help them?  YES  But even a LegalZoom will or an effort where you try to get it right is better then a signed “letter”.

If you can’t find a lawyer who is affordable for this, look harder.  Many lawyers are willing to do basic Wills for surprisingly low fees.

I’ll go one further…..If someone fairly local needs a Will and is in the hospital, or confined to home, if they are able to tell me what they want, I WILL MAKE A HOUSE CALL TO GET THIS DONE.  It’s that important.  I know I am not alone in this approach.

Every time I do this, I know I scored a plus one in the cosmic karma of the universe.

So I got THAT going for me…which is nice.

 

When someone is a fiduciary (Executor or Administrator) of an Estate, they are accountable to the people who have an interest in the Estate.  This includes the beneficiaries.  When they are doing their job correctly, they are transparent, honest, and communicative.

What if they aren’t doing those things?  What if they are being secretive, or doing things that don’t seem right?  Or are doing nothing?

Sad to say, these things happen with some frequency.

The remedy in New York is filing a “Petition to Compel an Accounting”.

This is a Surrogate’s Court proceeding which causes a Citation to be issued to the Fiduciary, directing them to appear in Court and file a formal accounting (or otherwise explain why they haven’t yet).  As in any Surrogate’s Court proceeding, the person asking for relief (the Petitioner) files a Petition which explains what’s going on.  It’s a pretty simple Petition, “I am a beneficiary in the Estate of Smith. Joe  is the Administrator.  It has been more than 7 months since Joe was appointed, and he has not accounted.  Make him file an Accounting”.  The wording is a bit more legal, but essentially that’s what it says.

Why 7 months?  That’s the time period for creditors to file claims, so generally we don’t expect a fiduciary to account before that time.

The “Petition to Compel” is served on the Fiduciary.  When the Fiduciary appears in Court in response to the Citation, the Surrogate generally asks a few questions:

  • Have you filed an Accounting yet?  If so, the “Compel” proceeding is over.  If not, the next question is “why not?”…
  • There are all kinds of answers, but no matter the explanation, the next question is, “when can you get it done and filed?”
  • Depending on the response, the next question will be “Are you willing to consent to an Order directing you to Account?” The answer should be yes, and then…
  • How long will you need?  The choices are usually 30, 45 or 60 days.  People sometimes ask for longer, but they better have a good reason.

The Court will then note for the record what the Fiduciary has agreed to, and then ask the Petitioner (the one who asked for an Accounting) to “Settle an Order”.  This means the Petitioner (or their attorney) will submit an Order for the Judge to sign that directs the fiduciary to account by a certain date.  Submitting this order is an important step because the time doesn’t start to run until the Judge signs the Order. If it seems strange that the litigants (or attorneys) have to submit the Order for the Judge to sign, I’d say “Welcome to law practice”.

When the Fiduciary files their accounting, this is a new proceeding.  That means their Petition and Accounting gets filed with the Court, with Citations issuing to all interested parties.  This is its own proceeding, where objections can be filed and the REAL issues are addressed.  I will cover this in a future post.

One more thing about compelling an accounting.  What if the fiduciary agrees to account, consents to an Order, an order is signed, and they STILL don’t account. The next step is a Petition for Contempt of Court.  Why is it “contempt”?  Because the person has violated a Court order.  Are fiduciaries ever put in jail for such things?

YES!!!

When things reach that point, they usually do what they are supposed to do.  Sometimes that’s what it takes.

And, sometimes at the outset you suspect it will be that way.  That’s why you get to ball rolling with the “Petition to Compel”.

There are two types of Surrogate’s Court Petitions that often give a lot a value. These are:

Petition to Compel Production of a Will and Petition to Compel an Accounting. These are proceedings that can be used when you are trying to get things going and nothing is happening.   Not only are these petitions relatively easy to bring, they force recalcitrant players to come to Court and/or hire lawyers.  Very often these elements advance a situation and hopefully create momentum to get the matter resolved.

When you are in the right, sometimes the best thing that can happen is your adversary gets an attorney.  When this happens, there is now somebody other than you and me telling the adversary they are wrong.  Sometimes people need to hear it from someone they trust.  Also, the reality of what it will cost to pay a lawyer to defend a bad position is often a big incentive to start negotiating.

PART 1 – Petitions to Compel Production of A Will

I will make some references to New York law, but I dare say there are similar proceedings in most (if not all) States.  For our discussion here, I am primarily interested in the practical and tactical issues in these types of proceedings.

What do we do if someone has died, some time has passed, we know/believe there is a Will (and we believe we know who has it), but for some reason they are not doing anything with it?  There are reasons someone would act this way.  It pays to think about why.  If the person is living in the  decedent’s house, almost anything they do will make their financial situation worse.  Sometimes the person doesn’t have the financial ability to retain an attorney and pay the Court filing fees.  Sometimes they are paralyzed by emotions.  Sometimes they just don’t know what to do.

Of course, sometimes we know what’s in the Will we are looking for and sometimes we don’t (we just know/suspect there IS a Will).  Hard as it might be, you have to find out.

In any event, we need to get the Will filed because until that time, nothing positive can happen and problems just become bigger problems.

Factored into this, sometimes, are situations where a client may have the right to file under intestacy and become the fiduciary (in NY this would be an Administrator).  However, it’s a bad situation when you do the work and pay the fees as if there’s no Will, and then some knucklehead wakes up and files the Will. Just to add another challenging scenario, what if you had inheritance and/or fiduciary rights under an earlier Will…so that if there is no later Will the Will you have would be IT.  Prior wills raise all kinds of issues and problems.

I try to stay away from legal talk and Citations, BUT, the applicable law is pretty clear…

A Petition to Compel the Production of a Will can be brought under Surrogate’s Court Procedure Act (SCPA) sec 1401.  SCPA 1401 says….

“Whenever it shall appear to the court, sua sponte, or by the petition of a person authorized under the succeeding section of this act to present a petition for the probate of a will, that there is reasonable ground to believe that any person has knowledge of the whereabouts or destruction of a will of a decedent the court may make an order requiring the person or persons named therein to attend and be examined in the premises. Service of the order must be made by delivery of a certified copy thereof to the person or persons named therein either personally or in such manner as the court shall direct. The court may either in the order or otherwise in the proceeding require the production and filing in court of any will of the decedent which it finds is in the possession or under the control of the respondent. The court may impose the reasonable attorneys fees of the petitioner in such a proceeding against a respondent when the court determines the respondent did not have good cause to withhold production of such will or codicil.”

So, the Court is authorized to order people to “attend and be examined” regarding Wills they might have.  You start the proceeding with the intention of convincing the Court to issue a Citation directing a person to bring the Will to Court and possibly be examined (questioned under oath).  Per the statute, when the Court signs the Order, a certified copy of it must be personally served (though the Court can fashion alternate means of service if there is a problem).

The person gets served with a Citation, directing them to come to Court at a certain date and time and Answer the Citation.  The most frequent result is that when you Answer the calendar in support of the Petition, the person who was served comes up to the bench, says “Here”, and hands over the Will.  When this happens, this particular proceeding is done.

The ball is then in someone’s court to file a proceeding regarding the Will.  At least now, with the Will filed in Court, if the person doesn’t do anything, YOU CAN.  If they try to snooker you after you Petition, by saying they are named in the Will, you have great grounds to object.  “Look how irresponsible they were, look at conflicts of interest, look what they cost the Estate, etc.”

Sometimes the person gets an attorney and they file the probate papers and get things moving.  If this happens, you got what you needed…something is happening.

Sometimes people come to Court and deny they have a Will.  In this case it pays to consider what questions you might ask this person on the record, which may be pertinent to finding the Will or establishing there isn’t one.

Sometimes people get served with the Order and don’t show up.  The remedy, and this applies to any ignored court orders, is to file a Contempt Proceeding. Are people ever brought into Surrogate’s Court in handcuffs for violating a Court Order? YUP, I have seen it many times.  Also, receiving the Contempt paper saying they are going to be arrested if they don’t show, often has the person come in with the Will and say “Uh, here.”

A few New York Surrogate’s Court notes:

You should check whether the particular County’s Surrogate’s Court does these Petitions in the probate department or the misc. department (yeah, it’s really called that).

Like many proceedings, you have to prepare a proposed Order.  When you serve the Order, since it must be certified you need to ask whether it needs to be Court certified or whether an attorney can certify.  Also, the Affidavit of Service must state that a certified copy was served.

In the statute, where it says “sua sponte”, this means “on its own”.  So, if there is a Court proceeding going on and the Court thinks there is a Will out there, it can issue an order sua sponte (even without someone filing a Petition).  I saw it happen once.

The filing fee for a Petition to Compel Production of a Will is $20.

Coming Next – Part 2 – Petition to Compel an Accounting

Comments and questions always welcome!

 

 

 

Basic definition – A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other asset for another person.

When doing Wills or handling Estates, we are often talking about fiduciaries.  A person who is named as Executor of an Estate, or who is appointed as Administrator of an Estate (in a no-will situation) is a fiduciary.  What does this mean?  Why is understanding this so important?

I usually explain it this way – “A fiduciary has a higher level of responsibility than an individual.  They are responsible to look out for the interests of everyone who has an interest in the thing they are the fiduciary for.  If there is a conflict between an individual’s interest and their responsibility as a fiduciary, they must exercise extreme caution and make sure they fulfill their fiduciary responsibility before looking out for their individual interests.”

Very often a person named as Executor in a Will (who will therefore become a fiduciary) is also a beneficiary.  Is there an inherent conflict of interest in this?  YES, but this is not a prohibition against doing it, it is simply something to heed at all times and to work through carefully.

On the surface, we can see that if a Will names one child of four as Executor, and splits the Estate equally among the four, the Executor should divide the Estate equally and not make their own share higher, or pay their share earlier than the others.  That’s easy.

But there are often others the Executor/fiduciary has obligations to, like creditors and tax authorities.  What happens if the Estate owes taxes, or if a creditor claim arises within the permitted time?  Let’s add the fact that the Executor has marshaled the assets and wants to do right by the other beneficiaries, so he pays them their full shares.  Lo and behold, a timely creditor claim against the Estate pops up but the Estate funds have already been paid out to the beneficiaries.  Guess what?  The fiduciary can  be held personally responsible for breaching their fiduciary responsibility!

Being a fiduciary can often be a difficult and stressful job.  In New York an Executor or Administrator is entitled to be paid a fee for their work.  The fees (called “commissions”) are roughly 5% of the first $100,000, 4% of the next $200,000, 3% of the next $700,000, and so on.  It can add up to some money, but most would tell you, they EARNED IT.  I have to agree.

A few observations about fiduciaries….

  • Selecting an Executor via a Will is a VERY important decision.  Sometimes even more important than naming beneficiaries.  Naming successor Executors in a Will is also very important.  These people will be fiduciaries, so make sure they are up to it.
  • When an Estate is being handled well, usually it’s because the fiduciary understands their responsibility.  When an Estate is not being handled well, or when someone has an issue with the way things are being handled, a “breach of fiduciary responsibility” is generally at the core of any claims.
  • In an Estate Administration (no Will), when people are fighting over who should be appointed fiduciary, they either don’t understand the fiduciaries’ role, or they are fearful that the others don’t.  I have seen this scenario MANY times.
  • The best ways for fiduciaries to avoid problems are to have clear and transparent communications with the interested parties and to keep great records.  Other than outright stealing, nothing will put a fiduciary in a worse position than secretiveness and lack of communication.  I counsel client fiduciaries to be pro-active in communicating with the other interested parties.  I can’t say they always follow my advice, but I KNOW it is the right advice.

I may have given a few practical reasons to do things right, but there is a bigger reason.  If someone named you as Executor, it’s because they TRUSTED YOU.  As difficult as the fiduciary role can be, it is an “honor bestowed”.   That alone ought to be enough for a person behave as a fiduciary should.

If you are that person, remember that.  If you are making a Will, choose someone who will get that!

What happens if someone involved in an Estate is dead?  These situations are very common.  A few standard approaches apply….let’s look at a few situations:

The most important distinction to know is that PRE-deceased situations are very different than POST-deceased situations.  When I refer to “PRE” and “POST” I am talking about when the person died in relation to the decedent (the one whose Estate we are talking about)

The basic rule is that POST-deceased persons do not lose their rights.  Generally, the interest a post-deceased person had in an Estate now belongs to THEIR Estate.

A quick example – A widow with three adult children dies with no Will.  Her heirs would be her three adult children.  Some time passes and no action is taken in this woman’s Estate and then one of her adult children (let’s make him a son) dies. What are the shares in the widow’s estate?  It would be one-third each to the two living children and one third to the heirs of the post deceased son.  Those heirs would be determined either by the son’s Will, or if he had no will, by HIS heirs under intestacy.  Let’s give the post-deceased son a spouse and 4 minor kids, and no will.  So now, his one-third interest will be divided within his Estate under intestacy ($50K + half to the spouse and the other half among the minor children).

Wait, it gets worse…..if we want to move forward with the widow’s Estate, we can’t even get started until we get jurisdiction over the post-deceased son’s estate.  That is, we have to establish the post-deceased son’s estate before we can even move forward with the main estate.  It is not unusual to process a post-deceased estate BEFORE you can even do the main Estate.

Pre-deceased situations are different.  Let’s take the above example and make the adult son pre-deceased.  In that case, the widow’s Estate would go one-third to each of the the two surviving children and one-third split among the 4 grandchildren.  The daughter-in-law would be OUT.  (Note – in a post-deceased situation she would be IN for a meaningful share).

I have been involved in Estate with multiple “estates within estates”.  These complexities must be addressed or nothing can move forward.

There are a few important lessons in all this:

  • Estates should be addressed promptly.  For various reasons things can get delayed.  I have seen situations where nobody did anything in an Estate for 20 or 30 YEARS!  This usually happens when the only asset is a house, and nobody does anything because some family member is living in the house and then they die (or move, or need money).  But even in non-extreme situations, a delay of a few years due to procrastination creates complications related to post-deceased parties.
  • People should make Wills.  When people don’t make Wills, results are often a crapshoot.  In the predeceased child situation above, if the widow had a Will her wishes would be clear.  Maybe she would have left something to the daughter-in-law…it happens more than you might think.  Maybe she would have put her grandchildren’s funds in a trust and named an appropriate Trustee.
  • People should make Wills, Part 2.  If the post-deceased son above had a Will, it would have been clear what HE would have preferred, and I suspect it would have been 100% to his spouse…for her benefit and so she could take care of their children.  Having the inheritance going partially to the grandchildren is a horrible result, especially if they are minors.  The money would be tied up in Guardianships, with a ton of money wasted, to say nothing of the inconvenience and heartache.  Easily preventable, but a person has to be pro-active and make the Will.
  • When people make Wills, among the most important considerations are the “what-if” scenarios.  Well drawn wills reflect the persons intentions in case someone pre-deceases.  Wills that don’t do this leave too much to chance.

While “estate within estate” situations are more work than estates without this issue, it is a huge mistake to procrastinate.  These situations only get harder, and yes, there are cases with MULTIPLE estate within estates.  My own personal record is six!

If you are confronted with one of these situations, or if you want to prevent such a situation, please contact me.

When I do Wills for clients, I always discuss the option of doing Living Wills and Health Care Proxies.  I consider these so important, and so fundamental to proper practice, that I offer them at no additional charge.  Here are the basics:

LIVING WILL – This is a person’s written declaration that if they are in a hopeless situation, they do not want to be kept alive artificially.  Sometimes I say to clients “This is like that Florida situation from a few years ago, where the woman was in a coma and the husband was feuding with her parents.”  For some reason, everyone seems to remember that case.  The basic forms for a living will provide for pain relief, but invasive life sustaining procedures not be undertaken. Having this all stated in writing makes it much easier for doctors, hospitals and families to know what to do…or not do.

When I state the option, most people opt for it, but not all.  I have not editorial opinion on it.  When people express a strong opinion that they want a Living Will, the sentiment is usually “If I’m hopeless pull the plug, I don’t want to suffer and I don’t want my family to suffer.”  When there is a strong opinion not to do it, it’s usually along the lines of “These things should be in G-d’s hands”.  I never argue.  My informal data suggests that when this option is suggested, people say to do a Living Will about 90% of the time.

HEALTH CARE PROXY – This is different than a Living Will, but crucially important.  A health care proxy designates someone to make health care decisions if you are not able to make the decision.  This would be a “not hopeless” situation.  My usual quote is “A health care proxy comes into play if you are in a coma, but not hopeless, and the risky ‘xyz’ procedure MIGHT help, but who will decide whether to do it?”  The health care proxy gives someone, usually a trusted family member, the responsibility to decide.

I always include the designated person’s cell phone and home #.  Hey, if we need to reach the person quickly we better be able to.  Sometimes people want to have two people have the responsibility together.  I am not a fan of this, but will do it if clients insist.  I often name one person and a successor or back-up.

Obviously, being designated a Health Care Proxy is a big responsibility, so the decision on who to designate is important.  I had some first hand experience with this, and I often relate this to my clients, to illustrate its importance.  Bottom line:  my Dad had named me his health care proxy and unfortunately ended up a a very serious medical crisis where decisions had to be made.  My step-mom and I were not in agreement on what should be done and when, but I had the health care proxy which enabled me to be clear to the doctors and the hospital that I was the one designated to make decisions.  I took the time to investigate ALL the options, and discussed them with her and other family members.  I had made a painful decision that I was comfortable with, but thankfully I did not have to actually implement it because my Dad regained consciousness, lived another two weeks, then passed peacefully (This was in 2010).  The reason I tell this story is to impart that not only did I feel I had honored my Dad’s wishes, but that in the short time he regained consciousness, I told him what had transpired.  In fact, his last words to me were “I’m proud of you”.

Health care proxies are VERY important!

When I am discussing the possible preparation of a Will, I ask a series of questions that follow a general framework.  This tends to bring all the issues to the surface in a logical way.  I respect that people often want to just “tell me what they want the Will to say”, and that very often they have put serious thought into it.  I usually then ask if they would be OK if I asked questions in my preferred order, as it tends to bring out EVERYTHING, including the things I am sure they want to tell me.  Most people are fine with this.

I call my approach the WHO, the WHAT, and the HOW.

WHO – I start with a pretty detailed family tree.  I don’t go back to the Mayflower…what I am looking for is establishing who are the “distributees”, that is to say “who would inherit if this person died without a Will?”.  As mentioned in earlier posts, this is very important because even if those people are not in the Will you have to get jurisdiction over them during probate.  All my will files start with a little family tree diagram.  I get the names, the relationships, the ages, and make note of anything pertinent the client tells me.  Of particular interest are people in the tree who are minors, or disabled, or missing, or elderly.  I make note of pertinent details about them.  During this part of the interview I usually have a sense of what is going on and who is “involved” and who isn’t.  Since the people on the tree are likely to be discussed as the interview proceeds, I can now refer to them all by name and with some clarity as to who they are.  When I have enough family information, I draw a line on my notepad and say….”This concludes the WHO portion of the program, let’s move on the the WHAT”.

WHAT – In this section I make clear that while I don’t need to know every account and asset down to the penny, I do need to know WHAT we are talking about.  I specifically want to be clear about what assets the Will will affect and what assets it won’t.  For example, Wills don’t generally change things like life insurance beneficiaries, or bank accounts with beneficiaries.  This must be looked at carefully because, and I actually say this to clients “I once did an Estate where the drafting attorney did not ask about these things, and there was a horrific result”.  In that case a man did a Will and left everything to his sister, who was his closest relative. However, his biggest asset was a retirement account where he had named a beneficiary, a girlfriend from 20 years ago where there was a bad break-up…Orders of Protection, death threats, etc.  Guess what? – the ex inherited $400K, and there is no doubt that if the drafting attorney had asked, the client would have been told to change the beneficiary. He surely thought a Will leaving “everything to my sister” would do the job.  It didn’t.  So now, I always ask

I also ask about things like title to real estate, and if it’s within NYC I check it on ACRIS (the City’s e-recording system).  Many times we find surprising things and address them.

I basically inquire about the title to any meaningful assets and make notes about it.

And then at some point I say “Now we are done with the WHAT, lets move on to the HOW, as in HOW DO YOU WANT THINGS TO TURN OUT”

HOW – At this point I ask the clients how they want things to go, what is their idea about who should get what?  It is a good idea for people to have thought about this before we speak, and most have.  An interesting question is often whether to do things in terms of dollars or in terms of percentages.  Generally the smaller bequests (if any) should be in dollars, and the broader ones (often called the “residuary bequests”) should be in percentages.  At this point I ask questions that many people have not thought of, which is a series of “what if” questions.  Things should not be left to chance, so we then get into the sometimes uncomfortable “what ifs”.  What would happen if “so and so” dies before you, which is something we ought to provide for.  I don’t take this to ridiculous extremes, but I do go pretty far into it.  Strange things happen, and as long as we are doing a Will, I do not leave these things to chance, especially if someone has a strong opinion, like “if x dies before me, I do not want y to get his share”.  I make sure this is covered.

Also very important in the HOW section is naming Executors and if applicable, Trustees.  The Executor is the person who takes care of the Estate after a person dies. They get the Will probated, marshal the assets, pay expenses and taxes, and make sure the Wills terms are carried out,  Naming an Executor is a VERY important decision.  Co-Executors are permitted and sometimes appropriate. Naming a successor Executor (another what-if) is also important.  Trustees come into play if the Will is establishing aTrust, which would usually apply for a minor or a disabled beneficiary.

Obviously, the above is just a framework.  If the discussion leads to more details about particular issues, of course we explore them.

Funny thing though, when I follow my outline and we reach the end and I ask “Is there anything else?” most of the time the answer is “Nah, we covered it, what happens next as far as preparing and signing the Will?

And so it goes.

Next post – “Living Wills & Health Care Proxies”

 

Sometimes family members feud.

Sometimes it’s irreparable (in the eyes of the participants…..I would always beg to differ, but that’s another story).

Sometimes thoughts of money and mortality will lead a person to take action.

So they make a will….with one main purpose…..to make sure that “X” doesn’t get anything.  Sometimes there are related purposes, to make sure that “X” gets the message, or knows what (s)he missed out on, but the theme is often the same…….”X” gets nothing.

I’ve done a lot of wills like this. In these situations, you want to minimize the possibility of a will contest in the future. Sometimes the will-maker’s main problem with “X” is “he’s the kind of person who would contest a will”. The solution is something called an “in terrorem clause”.  Sounds pretty cool…..here’s how it works. You leave “X” enough of a bequest to make it interesting, and add a clause that says effectively “If after my death “X” takes ANY steps to contest this will, he will get ZERO”. People who are so inclined generally love this suggestion, but some real thought has to go into it. To make it effective, you actually have to leave “X” something in the Will.  Clients invariably say “So leave him $10″….but that’s not the way to do it, because “X” would have nothing to lose. A better approach would be to leave “X” a bequest of say, $10,000 or $25,000, in a million dollar estate, and let him have to deal with it.

Sometimes people don’t want to do an in terrorem clause, they simply want to leave “X” nothing, and minimize “X”‘s chances in a will contest.  If someone is being left out, I always suggest that the Will specifically refer to them. It can be as simple as “I intentionally make no provision in this Will for “X”, and this is not due to an oversight”. Some people go further and say something more…..”I leave “X” nothing because he…..whatever.” Another phrase clients have requested, more than once, is “I leave nothing to “X”, for reasons which are well known to him.” I didn’t like it, but the clients wanted it and I did it. I always wondered if “X” really knew the reasons.

If there are potential issues regarding the will-makers competency, additional practical steps must also be taken to ensure the Will will stand. These would include using the best witnesses possible, keeping the language of the will as clear as possible, keeping detailed notes, and making sure it is documented that the attorney/draftsman met with the will-maker ALONE.

There are legal provisions for video-taping a Will, but for many reasons I have never done it. Imagine having the “out-takes” being subject to discovery in a will contest?

Why all the fuss about possible will contests? Consider this…..attorneys can (and frequently do) take will contests on a contingency fee.  I have done this, IF I think I have a good shot at knocking the Will out.  There are often high stakes, where the will beneficiaries may get nothing (or much less) if the Will gets tossed.  Guess which ones I pass on?  The one’s where good steps were taken to thwart a contest.

With this in mind, and if the possibility of a will contest is being considered during the will drafting process, steps can and should be taken to protect the Testator’s wishes.