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Unintended
consequences "The possibility of trying to manage multiple accounts and keeping track of where everything is and who the beneficiaries are can be very difficult," says Jean Setzfand, director of financial security for AARP. "It definitely can be a problem." A related risk: making sure that elderly parents don't accidentally let their life insurance policies lapse and thereby inadvertently disinheriting their loved ones. Where do wills typically take a wrong turn? 1.
Failure to update a will Joanna Grossman, a law professor at Hofstra University who has been tracking Anna Nicole's ongoing legal battles, says a few simple changes to Anna Nicole's will could have meant millions to young Dannielynn had Anna Nicole predeceased Daniel. "If she had written the will in the first place to say, 'I leave everything to my children, if any,' none of this would have happened," she says. "There are lots of different missteps, but certainly not updating the will after a marriage, a divorce or the birth of a child are key ones. Many estates come undone because of a significant change in family status after the will is made." Solution: Always update your will after life's "big three": marriage, divorce or birth of a child. 2.
Disinheritance by faulty will Adams says do-it-yourself wills may be especially prone to disqualifying technical errors. "I had one a few years ago that, upon review, generated about eight different accidental disinheritances," he says. "If you want to do it yourself, when you're done, take it to someone who generally knows what they're doing. An hour-long review can tell you whether you've got problems." 3.
Disinheritance by stepparent succession The common accidental disinheritance by stepparent goes as follows: A widower remarries and, thinking to save a few bucks, retypes his simple will, leaving everything to his new wife. When he dies, the new wife, having no blood relationship to his children, passes her assets on to her children, thereby disinheriting his children, which was not their father's intent. "One young man in this situation told me, 'You know, I wasn't worth $100 to my old man (to get his will reviewed)," Adams says. The solutions: The father could have named blood descendants as express heirs, established a trust that limited his wife's rights to those assets and named his children as ultimate trustees. Or he could have entered into a mutual will with his spouse so that their assets would be distributed among both families by a formula they would design. "One of the problems with wills in general is that they are never to be used immediately, so you're always anticipating the future," says Grossman. "The role of a good lawyer is to anticipate all of the potential future scenarios and to draft around them. You want to draft for every contingency." 4.
Disinheritance by ademption The sad outcome could have been prevented if Dad had updated his will to reflect his new circumstances. He also could have taken the proceeds from the house and business out of his estate by placing them in a trust for his sons. 5.
Disinheritance by misunderstanding survivorship Here's an example of an unintended snafu: Let's say a farmer had two sons and early on decided to disinherit the wastrel one. Years pass, during which the father established pay on death and survivorship deeds in the good son's name. Then the prodigal son returns to the bosom of the family. The father rewrites his will leaving equal shares of his estate to each son. But upon his death, the shares won't be equal, as the survivorship instruments will dump a disproportionate, unintended inheritance into the good son's lap. That's because a will does not supercede survivorship, transfer upon death and pay-on-death instruments. "One of the biggest forms of accidental disinheritance today is the split of assets between wills and trusts and survivorship forms," says Adams. "When they want to make a change later on, the will can't touch those assets because they put them in survivorships. Now it's a slippery slope to categorize those things." 6.
Disinheritance by mirror-image wills Here's an example: The deceased husband's will specified that one of his two children is to receive $100,000 more than the other child because the other child previously received a similar amount for educational expenses. This was his way of evening things out. But if the wife does not change her mirror-image will, when she dies, that child will receive a $100,000 grant from each parent, or double what their parents intended. 7.
Disinheritance by failure to prepare a will Grossman says having a will is not always about the money. "There are non-financial things that actually are more important, such as naming a guardian for your children," she says. "Giving someone a durable power of attorney for healthcare decisions is another big one." Staring
down the reaper "It's a terribly painful area because you're fighting people's instincts. They don't want to think about the inevitable, and so they don't," says Adams. "If they would have brought (the will) to our attention the day before someone passed, we could have solved hundreds of thousands of dollars going to the wrong places. Beyond that, there's not much chance of saying Dad didn't understand what he was doing -- hey, he wrote a will." Setzfand says overcoming that nervousness is precisely what we need to do if we hope to avoid accidental disinheritance. Please note, individual financial circumstances will vary. The information on this site does not constitute legal or tax advice. As with all tax and estate planning, please consult your attorney or estate specialist. All material is copyrighted and is for viewing purposes only. Revised: December 7, 2007 14:17.
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