Klitzman Law Group, PLLC

Can an Invalid Will Be Challenged?

If you are looking for a reason to get your estate plan in order, the experience of a daughter faced with a long and expensive legal battle when an invalid will was filed should motivate you to contact an estate planning attorney today. This unsettling story, reported by KATU2, “Woman says invalid will drained her mom’s estate and exposed holes in OR probate process,” shows why wills need to be updated and shared with family members.

 

A woman’s mother died suddenly in her daughter’s apartment. A few months later, a will was filed and accepted by the probate court but not by the daughter. It took nearly five months for a judge to throw out the invalid will after it went into effect.

The will expressly disinherited the daughter, who was very close with her mother and knew her mother would never have disinherited her. Her attorney filed to contest the will in June 2023.

The witness and the notary on the will were identified and interviewed. Both said they never signed the documents. The witness and notary filed their statements with the court in July. A handwriting expert who testified that the two signatures had been forged was brought in.

The handwriting expert also determined the mother’s signature on the will was forged, finding it had been taken from a legitimate will created in 2018. Kristy was left a quarter of her mother’s estate in this will.

The judge set a court date for September. In the interim, thousands of dollars were charged fraudulently on the mother’s credit cards. Someone advertised and held an estate sale in August when generations of heirlooms were sold at a garage sale.

The court froze the entire estate in late August. The 2022 will was found invalid in early September, and the executor was removed. By this time, however, a lot of irreparable damage had been done.

The court validates a will during probate. However, something went wrong in this case. Having a will prepared with an estate planning attorney and discussing the process with the appropriate family members should take place. However, not every family takes these steps.

The court is not responsible for contacting the beneficiaries to ensure that they receive their inheritance, unless they file a will contest with the court. It is then up to the heirs to prove a will’s validity.

In this case, both the beneficiary of the invalid will and the attorney representing the executor of the invalid will have refused to speak with a KATU2 reporter. So far, no charges have been filed. The only sure thing is that the case is under investigation by the county sheriff.

Keeping a will current and maintaining open lines of communication between the family, the executor and the estate planning attorney helps to avoid this kind of situation.

Reference: KATU2 (Oct. 14, 2024) “Woman says invalid will drained her mom’s estate and exposed holes in OR probate process”

Here’s When You Need to Update Your Will

If you’ve got a will and an estate plan, you’re ahead of most people who are completely unprepared for the future. However, having a will is just the start, says a recent article from AARP.org, “6 Times When You Should Update Your Will.”

A will needs to be kept up to date. Changes need to be made when life-changing events occur to ensure that it still reflects your wishes. A skilled estate planning attorney should make these changes to ensure that the will is valid.

Changes to your marriage or family. Anytime you undergo a significant change, like welcoming a new child into the family or starting a divorce, you must make sure your will is updated. If you are in the middle of a divorce and you die, do you want your old will to give the spouse you were divorcing everything? There are also situations where people neglect to update their wills, and a first wife receives a surprise windfall while the current wife is left in the cold, financially speaking.

Changes in your heir’s situation. If an adult child develops a substance abuse problem, you may not want them to inherit a large sum of money all at once. You may create a trust and name a trustee, setting conditions on their ability to inherit. If an heir becomes disabled and applies for government benefits, you’ll want to create a Special Needs Trust not to make them ineligible for support and programs.

Relocating to a new state or even a new country. The Census Bureau reports that more than 1.2 seniors move across state lines every year, and many Boomers choose to live overseas. Wherever you go, you want to be sure your will is still valid. Estate laws vary from state to state, so the will you created when you lived in Illinois won’t necessarily be valid in Arizona. If you move to another country, you must have a will drafted to comply with local laws.

Your net worth increases or decreases significantly. Whether your net worth goes up or down, a change in your financial circumstances warrants a look at your will. If you inherited a big sum, you may want to add some philanthropy to your estate plan, or you may want to change how your estate is distributed. Any reallocations need to be documented properly.

You want to make a change. Life is full of changes. Someone you picked to be your executor five years ago may have died, and you haven’t decided who you want to replace them. You could also have a falling out with a family member and want to reduce their inheritance. Most importantly, don’t try to amend an existing will yourself. Speak with an estate planning attorney to ensure that your wishes are followed, and the changes are valid.

It’s been more than four years since you’ve reviewed your will. Estate plans are never one-and-done documents. Even if your life hasn’t changed, tax laws have. Your will needs to be revisited every three to five years to ensure that it works to accomplish your goals and protect loved ones.

Reference: AARP.org (Sept. 23, 2024) “6 Times When You Should Update Your Will”

Changes to Estate Plans After the Death of a Spouse

The passing of a spouse is one of life’s most stressful events, topping the list of most mental health checklists for anxiety-creating experiences. Preparing for the inevitable passing of both members of a couple can provide some comfort, as it will eliminate some tasks during a difficult time. It’s important to build in answers to “what if’s” into an estate plan, advises a recent article from The Penny Hoarder, “How to Change Your Estate Plan After Your Spouse Dies.”

It’s easy to procrastinate estate planning. However, even if you have a will, as 1.3 million Americans do, you’re not finished. Regular updates of your estate plan to reflect new circumstances are necessary, especially upon the death of a spouse. It’s complicated to do this when grief is fresh. However, it becomes manageable by taking this task one step at a time.

Married couples typically create their estate plans together, with the understanding of one spouse outliving the other. Being realistic about who is likely to die first sounds a bit morbid. However, it should be taken into consideration. Males tend to have shorter lifespans, while people who live with chronic conditions, like diabetes, heart disease, or cancer, should keep the impact of their conditions in mind when making plans for the distant or not-so-distant future.

Powers of Attorney should be updated every few years. This is the person chosen to handle financial and legal affairs in case of incapacity. In most cases, this is assigned to a spouse, so it should be updated soon after the spouse passes. The power of attorney does not have to be an adult child but should be trusted, organized, and financially savvy.

Another document to be updated is the Healthcare Proxy, sometimes called a Medical Power of Attorney. An adult child living nearby, a trusted friend, or another relative needs to be named and the document executed in case you should become incapacitated. This way, someone can act on your behalf without going to court to obtain guardianship.

Wills and trusts need to be updated. With your spouse's passing, your estate may now be vulnerable to estate taxes on the state and federal levels. Who do you want to inherit your property from, and what’s the best way to pass assets on to the next generation? An experienced estate planning attorney will be needed to make this happen most efficiently and expeditiously.

After a spouse passes, you’ll also want to review beneficiaries on life insurance, retirement accounts and any accounts with a named beneficiary. If these documents have contingency beneficiaries who receive the assets, you'll be in good shape if the primary beneficiary has died. However, do you know for sure the accounts are structured this way? Reviewing all these accounts is surely a good idea.

It may be time for the estate to include a trust. The most significant change occurring when a spouse dies is the surviving spouse is now legally considered single. All states have laws about how much assets may be owned to qualify for Medicaid. This number is dramatically lower for a single person than for a married couple. The surviving spouse may need to put their assets into a trust to exempt some assets that would otherwise need to be spent down before qualifying for Medicaid.

This is also the time to review end-of-life documents, including a Living Will and other medical directives.

There’s no way to make the loss of a spouse easy. However, taking these steps to protect the surviving spouse and their heirs will provide some peace of mind.

Reference: The Penny Hoarder (Sep. 5, 2024) “How to Change Your Estate Plan After Your Spouse Dies”

Is It Important to have a Will?

The biggest mistake people make in estate planning is not having a will. Many think that if they don’t have a will, their children or spouses will automatically inherit everything, and their families will know what to do. This simply isn’t true.

A recent article, “5 reasons why having a will is important for you and your loved ones” from Microsoft Start, says depending upon where you live, if you die without a will, your estate will be distributed according to the laws of your state. It won’t matter what you might have wanted to happen or what your spouse or family thinks should happen. And there won’t be any recourse for your spouse or your children.

Part of your assets to be included in your will are known as “digital assets.” The digital content now being included routinely in estate plans includes blog posts, social media, and email accounts, followed by passwords. Other digital assets include cryptocurrencies, NFTs (nonfungible tokens) and online businesses.

The laws of every state are different, and there are jurisdictions within every state. The laws of intestacy are different in each one. Your entire estate might not go to your spouse but be divided between your spouse and your children. If you’ve remarried and your state’s laws give everything to the spouse, your biological children might be disinherited.

If you have relationships outside of marriage or kinship (also known as “bloodlines”), your state’s laws probably don’t recognize those relationships, no matter how lasting they may be. A close friend, family caregiver, or live-in partner may find themselves left out of your inheritance, even if you’ve told them you’ll take care of them.

There are many instances of live-in partners being evicted from homes when family members inherit real estate property and the partners are not co-owners. This is a dramatic example, but it is all too common.

Parents need a will to designate a legal guardian for minor children. The will is used to name who you want to raise your children and look after them financially. Part of your estate planning should include financial planning in the event of something happening where your children will need to be raised by others. You can set up a trust with trustees in charge of funds for the children’s upbringing. I

If the family includes a special needs individual, the estate plan should include a Special Needs Trust to protect their loved one. An SNT allows monies to be set aside for their benefit without placing their government benefits at risk.

An estate planning attorney can help you clarify your wishes and document them in your will. They’ll also help prepare documents like Power of Attorney, Living Will, Healthcare Directives, and others needed to protect you while you are living.

Reference: Microsoft Start (May 2024) “5 reasons why having a will is important for you and your loved ones”

What Information Should Be in a Will?

While it’s clearly more fun to plan for a baby shower than to contemplate your own mortality, making arrangements for the eventualities of life as we age—including incapacity and, yes, our own passing—does bring peace of mind. It’s necessary for everyone 18 and older, says a recent article from BestLife, “The 10 Most Important Things to Include in Your Will, Experts Say.”

The reason is simple: if you are incapacitated and cannot speak for yourself regarding healthcare decisions or your financial life, you need someone to do so for you. This is as much a part of your estate plan as asset distribution.

Planning for incapacity includes having a Power of Attorney (POA) and possibly a lifetime or revocable trust. The POA assigns someone else to manage everyday financial matters. The Healthcare POA is used to designate someone else to make medical decisions on your behalf if you can’t do so. You’ll need to discuss these roles with the person or people being named to ensure that they are comfortable with the responsibilities. Be sure that your Healthcare POA knows your wishes regarding medical directives and will carry them out, even if they feel differently about your wishes.

Your Last Will and Testament is part of a group of documents, including the POAs mentioned above. A will is used to name an executor who administers your estate. The executor has a large task, including gathering information for all assets, filing final taxes and estate taxes, paying off debts, notifying family members and distributing assets. Your executor should be someone you trust and who has the financial acumen to take on all these tasks, as well as managing heirs who don’t always appreciate the executor’s responsibilities.

You’ll need backups for all the people in all roles. Let’s say you chose a respected friend of many years to be your executor. If they become ill or die themselves, who will oversee your estate? You need a second, or even a third, backup executor to be named in your will. The same goes for trusts. A successor trustee is necessary to be sure that your trust and its assets are in good hands.

Minor children or dependents are protected through a will that is used to name a guardian (and a backup guardian) for minor children. If no one is named, the court will decide who will raise your child(ren). Similar issues need to be addressed, such as when you would want your children to receive an inheritance—all at once or when they reach legal age. Could it be specific percentages based on age? Picking the right person and creating a plan will ensure that the children have a good life, even in your absence.

Keeping wills up to date is critical to ensuring that your wishes are followed at every stage of life.  Everyone involved should know where the original copy of the will is located. Some estate planning attorneys will safeguard your will, while others recommend keeping it at home in a fire and water-proof safe. Whichever route you take, tell your executor and family members where it can be found.

Discuss the use of trusts with your estate planning attorney. Using trusts can minimize the amount of your estate needing to go through probate, which can be time-consuming and costly.

Don’t neglect your furry or feathered friends. If your lifestyle includes companion animals who are dear to you, consider who would take care of them if you became incapacitated or died. You can use a pet trust to provide assets for their care and name a caretaker, so they don’t end up in a shelter.

Avoid family battles by including your wishes for personal possessions with special meaning in your will. Family heirlooms, artwork and jewelry are among the items families fight over. Spare your family this stress by naming them in your will or gifting them while you are still living.

Digital assets have become a part of our modern lives. Suppose you leave a list of accounts, usernames, passwords and specific directions for your wishes. In that case, your executor will need to be able to manage your digital assets, including financial accounts, photos, subscriptions, airline miles, email and social media accounts.

If you wish to leave assets to a charity, you can do so in your will or make gifts before you die. Speak with your estate planning attorney about how to bequeath assets to a charity, which should be done in alignment with your overall estate plan.

Reference: BestLife (May 3, 2024) “The 10 Most Important Things to Include in Your Will, Experts Say”

What are the Disadvantages of Dying without a Will?

A new survey reveals fewer Americans are having wills prepared despite the dramatic increase in people having wills and trusts created when the pandemic was at its peak. Maybe it was because Americans were forced to remain in their homes and had more time to think, says an article from USA Today, “Facing mortality, more Americans wrote wills during the pandemic. Now, they’re opting out.”

Everyone should have an estate plan, especially parents with minor children or homeowners. Parents who die without creating a will leave their children at the mercy of a court to decide who will raise them and how they will be financially supported.

A last will and testament is just one part of an estate plan, which is created to outline your wishes for what happens to assets after you die and what happens to you while you are living.

Families facing significant healthcare decisions, for example, are better equipped to make decisions if wishes for end-of-life care have been incorporated into the correct legal estate planning documents. In fact, without proper planning, your family may not be allowed to be involved with your medical decisions. Depending on your jurisdiction, you’ll need a Healthcare Power of Attorney, Living Will, Advance Directive and HIPAA Release.

Estate planning can be overwhelming, which makes the guidance of an experienced estate planning attorney more important. Probate experts say using an online service to create a will and other estate planning documents is risky and could lead to larger problems when the documents are executed.

Most estate planning attorneys have reviewed online wills in which a spouse disinherited the surviving spouse, children in blended families have been disinherited and more. The cost of undoing the problems created by online wills, especially if the court declares the will invalid, is far higher than having a will properly prepared in the first place.

Wills and trusts are used to distribute property when you die. If there is no will, the court steps in, making decisions based on the laws of your state. Probate laws vary from state to state, and it’s always a guessing game to know who will get what.

For residents of New York State, for instance, if someone dies with no will, their spouse inherits the first $50,000 of their estate plus half of the balance, and the rest is distributed between the children. In Florida, the spouse inherits the entire estate. This may not be what you had in mind, but if you don’t have a will, it won’t matter—the state’s laws will decide.

An experienced estate planning attorney will guide you through the process step-by-step, making it one less task on your to-do list. The peace of mind from knowing you’ve protected yourself and your loved ones makes this a worthwhile task.

Reference: USA Today (April 3, 2024) “Facing mortality, more Americans wrote wills during the pandemic. Now, they’re opting out”

Why is a Will Important?

Everyone knows what a Last Will and Testament is. However, many Americans don’t have one, says a recent article from The News-Enterprise, “Why everyone needs a will.” Many people think they don’t need a will until they retire, are nearing death, or are concerned about the cost. However, the truth is, any adult with mental capacity needs to have a will. Every parent needs a will. And anyone who owns anything, whether a car, home, or bank account, needs a will.

Anyone who is married or owns assets with named beneficiaries or joint ownership still needs a will, which can be confusing to some people. Here’s why everyone needs a will.

Owning assets together, as in joint ownership, or owning accounts titled with another person’s name, as in payable-on-death, or owning assets with named beneficiaries, protect those specific assets from going through probate. However, everything else in the estate still must go through probate.

With no will in place, the state statute determines who will receive any probate assets. However, even with all assets assigned to beneficiaries or joint owners, if there is a lawsuit over the death, the estate will receive assets from the lawsuit, and money will be distributed according to state intestacy laws if there is no will.

When property is held in joint ownership, when the second owner dies, who will receive the property? In the same way, accounts with payable-on-death beneficiaries must consider what will occur if the beneficiary should die first. The property or assets may end up in probate anyway. If there’s no will, the state’s intestacy laws will determine who receives the property.

Another common question about wills concerns the need to work with an experienced estate planning attorney. Here’s the big problem: if the will is flawed because the person or online platform does not comply with the state’s laws of how a will must be created and executed, the will may easily be deemed invalid. If this happens, there’s no way to fix the problem, and the person’s estate is subject to state statutes.

There’s no reason not to speak with an estate planning attorney to learn how different property types pass from one person to another, discuss the tax issues in estate planning, including how inheritance can impact beneficiaries and what happens if unexpected events occur. Unintended consequences are expensive for surviving spouses and heirs and are more likely to result if no professional guidance is involved.

Even if you have a trust, you still need a will. Trusts need to be funded for them to work, and sometimes, assets are left out of them. A provision can be included in the will to “pour over” any assets into an established trust to protect against assets going through probate.

Parents need wills, so their minor children can be protected. The will is the legal mechanism whereby parents name a guardian to raise minor children. If there’s no will, the court appoints a guardian. This is a decision most parents would prefer to make themselves.

Reference: The News-Enterprise (March 2, 204) “Why everyone needs a will”

Digital Life Lives on After You’re Gone, Unless You Plan Ahead

Every year, Americans receive Facebook reminders to wish departed friends a happy birthday. It’s a sad reminder, but it happens because most people don’t address digital footprints as part of their estate plans. A recent article from the Monterey Herald, “Liza Horvath, Senior Advocate: Your digital life does not die with you,” explains how to get started.

Ensure that your executor has a list of websites and apps where you are a user. This includes Facebook, Instagram, X (formerly known as Twitter), Linked In, Snapchat, WhatsApp, Google email, Microsoft Outlook, bank accounts, investment accounts, photo storage and any other sites you use. You can use an online password manager or paper to make a list. If you create a spreadsheet on your computer, you’ll want to encrypt it to prevent unwanted access and ensure that your executor has the password. Whatever method you use, make sure that your executor knows where the information can be found.

When you die, certain platforms allow you to name someone to become your Account Manager or Legacy contact. Google’s Account Manager lets you set up parameters to notify someone if you have been inactive for a certain period of time. Facebook enables you to name a person to manage your account after you pass away. Apple also has a Legacy Contact option.

Like everything else online, website guidelines change, so you’ll want to create a Digital Will establishing your wishes for your social media and online accounts, referred to as “Directives.”

If you have digital currency or cryptocurrency, you’ll need an executor who understands how crypto works. They should be able to access your digital wallet and “key”, so they may access your assets. These funds are frequently lost due to a lack of planning and no paper trail to follow.

Depending upon your state, you may be able to give your Power of Attorney access to your digital assets in case of incapacity. Speak with your estate planning attorney to be sure that your will or trust addresses the ability to manage digital assets according to the laws of your state.

If creating a list of digital accounts seems too much to deal with, imagine your executor having to figure out your digital life. Without digital estate planning, your assets could be lost. As a result, your entire online life is vulnerable to digital identity theft that could easily continue for decades.

Reference: Monterey Herald (March 1, 2024) “Liza Horvath, Senior Advocate: Your digital life does not die with you”

Do You Need a ‘Will Contract?’

A will contract is an agreement made with another person, often a spouse, and is more likely used in a second or later marriage where you legally bind yourself to a plan for how assets will be distributed. In case of death or incapacity, a will contract ensures that your spouse cannot change the plan you have, according to a recent article from Forbes, “Will Contract: Should You Have One?”

For example, Jim and Jane are in a second marriage with two children from prior marriages. They understand the importance of a new will but are concerned about their agreed deal. Jane’s children will receive 60% of the overall estate because she brought more wealth to the marriage. Jim’s kids will get 40%. If all goes as planned, Jane’s kids will each get 30% of their estate, and Jim’s kids will each get 20%.

However, what if Jane dies and the entire estate is left to Jim, who decides to give each of the four children an equal 25% share? Or did he cut out Jane’s children completely? Without a will contract confirming their agreement, Jane’s children have no protection. While Jane could have created a trust to protect her children, this may not fully protect her children if Jim decides to pursue an elective share of the entire estate, including trusts.

Both parties will sign a new will and perhaps trusts, implementing their agreed-upon plan. These documents may be attached to the will contract as exhibits. The agreement may require each of them to provide the other with advanced notice before any changes are made to estate planning documents. In the case of incapacity, you may agree on who should get the notice. You may even provide that if one of you is incapacitated, no changes may be made without the approval of an independent person named in the agreement.

A will agreement may limit or even prohibit either of the spouses from making any significant gifts without the other spouse's written consent and/or specified individuals. If this is not included, either one of the couple or their agents under durable powers of attorney could undermine the entire will contract by giving away assets while living.

Are there any downsides to a will contract? There are additional costs and complexities. However, they are likely worth the added protection provided to heirs. Creating the will contract will clarify the “what ifs” in the same way a pre-or post-nuptial agreement brings up all financial dealings that may not otherwise have been addressed.

Failing to have a will contract in situations of a second marriage, short-term marriages, or quirky, questionable circumstances may lead to significant estate or divorce issues. While they are not yet widely used, expect this kind of agreement to gain popularity.

As with many estate planning techniques, will contracts should be discussed with your estate planning attorney to see if your situation would benefit from making this part of your estate plan.

Reference: Forbes (Feb. 4, 2024) “Will Contract: Should You Have One?”

How Should a Single Person Create an Estate Plan?

The short answer is singles should be doing the same things as people who are married and have families, except their situation may require some additional steps, says an article from Kiplinger, “Estate Planning for Singles.”

The most important thing is having a Durable Power of Attorney, naming someone as your agent so they can make financial decisions if you become incapacitated. Similarly, you should also appoint a Health Care Proxy to handle medical decisions.

If you don’t have a will, your state’s law will determine how your assets will be distributed, but no state will have a list of people to make financial or health care decisions for you.

Adult children often fill these roles, but it’s fine to look for other people to serve in these roles. A trusted friend whose judgment you trust completely and who is good at managing financial and legal matters could also serve in this role.

If the person you name to be your representative dies or becomes incapacitated, you’ll want to have a plan for someone else to take on the role.

Consider the age of the person you may want to serve in their role. If they are your age, can they take on these tasks if and when needed? A younger, trusted person may be a better choice, although there are no guarantees of age determining their availability.

If you don’t know anyone who could manage these roles, you could hire a professional, either an estate planning attorney, a trust company, or, in some states, someone licensed as a “professional fiduciary.”

What about your pets? An estate plan can also deal with issues of special concern to singles who own pets. You can use your will or create a pet trust to name a guardian and provide financial support for a furry or feathered friend.

Lastly, certain states have estate taxes, which have far lower exemptions than the current federal estate tax of more than $13 million. Some state estate taxes kick in on estates valued at $1 million. Married couples can delay estate taxes until the second spouse's death, but singles need to plan for tax liabilities, which is part of an estate plan.

Reference: Kiplinger (Feb. 17, 2024) “Estate Planning for Singles”