From the desk of Kristina R. Haymes, San Diego Estate Planning Lawyer…
October 13, 2010
*Fictitous names — stories are not tied to real people -any similarity is a coincidence. This blog does not provide legal advice, just general information.
Evelyn* lives in Del Mar and she is 86 and owns $10 million in real estate (even in today’s market).
Evelyn is a widow and has decided that she would like to drastically change her estate plan. She had previously worked with a San Diego Estate Planning Attorney when her husband was alive.
Evelyn has now decided that she would like to disinherit one of her children and change some of the beneficiaries of her trust and will.
What can Evelyn do to ensure that her will, trust, and other key estate planning documents are not contested?
One thing Evelyn can do is videotape the signing of her estate planning documents. Evelyn is in good health and has a sound mind, so a videotape would clearly demonstrate that she 1) was competent to make these changes, 2) was of sound mind, and 3) was not subject to undue influence. Courts in California have found that such videotapes can establish “compelling evidence” that a testator (person who executes a will) or Trustor (Grantor or “trustmaker”) was fully capable of making these changes. So, if one of Evelyn’s children decide to contest her trust or will, then, the estate would introduce the videotape as evidence that Evelyn was fully competent to make the changes.
If, however, Evelyn had alzheimers or had experienced some diminished mental capacity, then, a videotape could backfire and prove that she didn’t have the mental capacity to make changes to her estate plan.
So, be careful! Videotaping can be a shield against estate challenges and it can be a sword destroying estate planning.
Another important strategy is to include no contest provisions in your will and trust. California recently updated its law on which provisions will be enforced, making it more difficult to enforce no contest clauses. Nevertheless, it cannot hurt to include such a provision. No contest clauses generally provide that if a beneficiary challenges the validity of the will or trust, then, their right to inherit under the document goes away.
You challenge the will or trust and you are OUT. As mentioned, California has made it more difficult to enforce such provisions, but if the technical requirements are met, they can be enforced.
After all, it is everyone’s right to give their property to whom they want, when they want, and in the manner they want — and that is precisely one of the goals of estate planning — to make that process as easy as possible.
Of course, if dealing with rational individuals, it is often better to discuss with the beneficiaries your plan and why you are doing things the way you are so they understand your thought process (and hopefully will be less likely to challenge your plan after you’re gone). But the reality is that too often, people are not able to act rationally when it comes to issues of money, inheritance, and the emotional issues that are deeply connected to such things. Too often a lifetime of hurts, or memories, or previously unresolved issues will rear their ugly head when a loved one dies. And, also too often, people are not able to accept a parent’s decision to change their estate plan. Sometimes, children if they knew of such changes would attempt to manipulate or coerce the parent into changing the plan. Thus, there are often many valid reasons people have for not discussing their estate plan with the beneficiaries or changes they are making and why.
If you, like Evelyn, want to make significant changes to your San Diego estate plan, and you think it is highly likely that your changes will be unpopular with your beneficiaries (children, step-children, or other relatives), then, by all means call our office and we can assist you in making sure that your wishes are followed and can videotape your signing to protect against any future estate litigation.
I’m Kristina Haymes the owner of Haymes Law Group, and I am here to serve you and your family with all of your San Diego Estate Planning needs. We are not like most law firms, and I invite you to take advantage of one of our 2 free monthly Family Wealth Planning Sessions where we can discuss your situation and how the personal attention of our law firm can serve your family’s estate planning needs.
Create Legacies and estate plans that work!
Del Mar/Carmel Valley office for all your Trusts, Wills, and other San Diego Estate Planning needs