The Roadmap to Your Family Should be in Your Will

The cornerstone of Probate, leaving your estate to whomever you want, is almost paradoxical since the process is not as easy as most people think. To the great surprise of heirs that are listed in the Will, the decedent’s descendants (or next closest relatives) must be put on notice during the Probate process to validate the Will. The very concept of the requirement of placing the next of kin on notice is foreign to most clients: Why does a person’s nearest relative, who the Testator may have loathed, still have to be placed on notice of the Probate of the Will, even if that relative is being disinherited? The answer: Our estate laws allow your closest family members the right to fight the disinheritance. Yes, they may lose in court, but they are the only ones who can bring a valid lawsuit against your estate. Even more importantly, they MUST be found and informed of the Probate of your Will.

 

Many members of small families may not be in close contact with their nearest heirs, and may have never even met them. This tends to happen more often with foreign-born clients, loners, and people who have moved far away from the rest of their families. Using genealogists and private investigators may be very expensive but otherwise necessary. As a result, it is often significantly easier and cheaper  to have the Testator’s assets pass using trusts, transfer on death accounts, and life estates or joint accounts, thereby avoiding the need to identify these heirs (not to mention subsequently serving them personally).

 

A more frequent issue is when addresses of the nearest heirs are not known, or when a family member within the line of succession has predeceased the Testator. For Example: If a Testator has never been married, has outlived his or her parents, had no children, and has two siblings who have children of their own, it is a good idea to state all this information in the Will, and to say where these siblings and nieces / nephews  are living at that time:

 

Example:

I have never been married and have no children alive or deceased, naturally or adopted. My Father, Bart Starr, predeceased me in 1997, and my mother, Martha Starr, predeceased me in 2001. I am survived by my two siblings: Joseph Starr, with a current residence located at 123 Barker Street, Green Bay, WI, and Jennifer Favre, who lived somewhere in Murrayville, TX when I last spoke to her in 2006. I have no other siblings alive or deceased. Joseph has two children, Lesley Starr and Miley Starr. Jennifer has one child, Mickey Farve.

Placing this type of information in a Will benefits the Testator, the estate, the people to whom the Testator wants to leave the money and the future Probating attorney in the following ways:

  • Finding these heirs becomes much easier when the Testator passes away.
  • The court clerks can better identify the next of kin when comparing the Will to an heirship affidavit.
  • Ensuring the Petition has all relevant information regarding distributes.
  • Establishing proof of the Testator’s knowledge of the “fruits of his bounty” (I.e. closest family members otherwise entitled to his estate under Intestacy)

 

  • Name and identify all distributees and legatees in the Will, and include their addresses, if known, in the Will.

 

 

DISCLAIMER: Attorney Advertising. Please note that prior results do not guarantee a similar outcome. This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

“Name That Witness” (to Your Will)

When you execute your Will you MUST have it witnessed by at least two competent adults who are not beneficiaries in the Will. When you die New York’s Surrogate’s Courts require the names of the witnesses to be listed in the Probate Petition. And so it is nothing short of stupefying to me how many Wills have witness signatures that are completely illegible.

This is somewhat understandable if you execute your own Will, since non-attorneys are not in the business of drafting Wills.  The signers of illegible signatures are also more easily identified in the event it was the Testator’s friends or neighbors who signed (and thus the identities of the witnesses are more easily deduced). But many attorneys’ witnesses also typically just scribble their names in an illegible blot. In addition, an inexperienced attorney often does not ask his witnesses to print their names or include their home addresses where they may be found in the future. This can become problematic, because the attorney usually has short-term staff members or even office suitemates who may be transients in the practitioner’s life: Witnesses may more or less be “lost to time” by the time you die and their identity becomes necessary to ascertain.

This inability to identify witnesses in the future may prove fatal to the validity of a Will if a witness has a common name and cannot be found when the Will is contested by a disgruntled family member, or when the witness does not remember the execution ceremony. Remember: your next of kin are  the primary parties who have a right to dispute the Will, especially when they are disinherited. The first thing they will do in a Will contest is contact the witnesses to the execution of the Will. Yet, if no witnesses can be found, there is no one to testify to the process of the Will signing and the Testator’s required mental capacity to execute the Will, and the validity of the document is going to be suspect.

Have your witnesses NEATLY print their names (with their signatures), and include their current residential address or some other address they can be found if a future Will dispute occurs. Also, you must have the Will’s self-proving affidavit signed at the time of the execution, or else the witnesses will have to sign it when the Will is delivered to the court upon your passing. This may happen years in the future, at which point the witnesses may be hard to find or they may not remember the signing ceremony. Make sure that witnesses read the self-proving affidavit before signing it (Wills have been invalidated due to this oversight).

Having a good written document is only the first half of having a valid Will: Proper execution of the document is essential for validating the document. Knowing the identities of your Will’s witnesses will both save you time and money, and better ensure your post-mortem desires are fulfilled.

 

 

 

DISCLAIMER: Attorney Advertising. Please note that prior results do not guarantee a similar outcome. This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

“Don’t Forget About BoBo: Pet Trust for Your Animal Companion”

One of my dearest aging clients have a dog named Bo Bo. Bo Bo is a true companion to this couple: They are in their 90s and have outlived many of their friends, the husband is more mobile than his wife and likes to get physical activity by walking Bo Bo, and the dog is absolutely in love with them. Bo Bo also smells bad, barks at the littlest disturbance, is a manic that constantly jumps on visitors, (and gets slobber and fur on my suit, which needs to be dry cleaned after every single visit) and is begrudgingly tolerated (at best) by anyone other than my clients. Unfortunately,  when my clients pass to the eternal human boneyard, Bo Bo’s fate is uncertain.

We love our pets, know they are living creatures, and rely on them when we are sad and need a companion who just listens without judgment (except perhaps for cats, who judge just about everything). But pets are still considered property: when it is our time to check out we need to choose who will get it, who will take care of the family pet and how to provide for that pet and its caretaker / future owner.

People often make fun of Pet Trusts (insert Leona Helmsley joke here), but they are a legitimate means of paying for the future care of a pet. The Executor of your Will gives money to the trustee who then pays funds to the person who is caring for your pet. This does not need to be distributed all at once: If the pet gets sick the Trustee can pay for the veterinary costs from trust funds, and also give the caretaker funds for his or her time. These trusts are often not properly funded: Expect to leave at least $3,000 for each year of your pet’s potential life expectancy (maybe more per year if they are older) plus whatever you want to leave the caretaker for his or her troubles.

Another way is to leave funds to a Not For Profit organization who will care for your pet. In New York a NFP called Bide-A-Wee will care for your pet in exchange for a reasonable fee (though this is not per se a testimonial on my part, Bide-A-Wee does have a good track record).

Lastly, there is always a simple bequest in your Will stating “I leave my dog Bo Bo to my daughter Sarah along with $10,000; if Sarah does not want to care for Bo Bo my Executor shall find an interested caretaker and give them the $10,000 bequest for Bo Bo’s care.”

Again, be realistic with the amount of funds you leave the caretaker: It was your choice to care for your animal companion, and now you should be willing to care for them as you would for any other needy family member upon your demise.

 

 

 

DISCLAIMER: Attorney Advertising. Please note that prior results do not guarantee a similar outcome. This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.