Having a Will Might Not Be Good Enough for Your Family

 

This blog post is courtesy of Kes Townsend, a Regent Law 2L and current Wills, Trusts & Estates student: 

 

How might your estate plan, or lack of it, or simple delay of it, affect your family?  That is an important question to ask yourself if you want to protect and benefit your family.  Here’s one example. 
 
Several years ago, my daughters received notification from an attorney in my home state that they were potential beneficiaries named in a will.  My father’s first cousin Floyd had listed them and about fifteen other relatives to share in his estate.  This was not a surprise because my mother and aunt had encouraged him to write a will.  After several years of procrastination, he finally executed a will and let them know of his intentions.   
 
The letter did not promise any specific timeline or mention any amount of inheritance.  It just informed us the name of the executor (my first cousin Page) and that the probate process had started.  Page hosted a family meeting to explain what was going on and to lay out what was in the estate, mainly a house in New Jersey and two houses in South Carolina. 
 
The lengthy probate then got really interesting.  As Page worked with the lawyer, they discovered that Floyd’s father Forrest did not have a will when he had died years earlier.  The lawyer requested permission from all of us so that he could get Page approved as an administrator for Forrest’s estate since one of the houses in South Carolina was still titled in his name.   
 
The other two houses, one in South Carolina and one in New Jersey, were titled in Floyd’s and his mother Mary’s name.  However, her estate had not been probated either.  Floyd also had a stepsister who lived in New Jersey.  She had received money decades ago from their mother and had signed a statement that she had no further interest in any future estate.   
 
Page worked with a second lawyer in New Jersey to complete the sale of the New Jersey house.  However, that statement that the stepsister had signed was not approved as valid extrinsic evidence of Mary’s intent.  So, after the sale of the New Jersey house, half of the proceeds went to her and half was applied to Floyd’s estate.  Floyd’s estate eventually did get the proceeds of the two houses in South Carolina. 
 
Approximately, three years after my daughters received their initial letters, they received checks from the estate.  However, the amount was not as much as it could have been if Floyd and his parents had planned their estates better.  His parents needed wills to express their freedom of disposition and to show that his stepsister had already been benefited.  Their estates should have been probated at their deaths instead of just ignoring the issue.  A larger portion of Floyd’s estate was consumed by additional legal fees to resolve unintended issues.  These issues penalized my daughters and the other beneficiaries by a respectable amount.   
 
However, my daughters still appreciated being remembered and were thankful to receive what they did.  Additionally, Page did a great job throughout the process keeping us all informed of what was going on.  The probate process worked but it just took time.  This, however, is an important cautionary tale for all who want to benefit their family members with their estate.