By Joey Wapelhorst, Staff Writer
Disputes between family members over the property of a loved one who has passed away can be a mix of high emotions, high stakes, and uncertainty. Bringing those disputes to court can be messy and expensive.
There is a “roadmap” to predictability and avoidance of litigation that could destroy family relationships and train financial resources. The main potential pitfalls can be explained by three phases of estate and trust execution: the formation of the estate or trust, the finished legal materials, and the execution of those materials.
The writing of a Last Will and Testament can be challenged if the competency of the person leaving his or her estate to others is in question. The loved ones of those with dementia, Alzheimer’s or other cognitive impairments must always be wary of those who may invalidate a testator’s wishes on the basis of their incapacity. Attacks on the testator’s capacity can invalidate the Will entirely, potentially leaving it up to a judge to decide what the writer of the Will really meant.
Another potential issue is “undue influence,” which can range anywhere from jealous children pressuring parents to change the distribution of assets in their will to elder abuse at the hands of a caretaker. By attempting to become overly involved in the will/trust process, even the most well intentioned individuals can later be accused of having an undue influence and those well intentioned efforts may end up hurting the Will writer’s true intent. Anyone seeking to ensure the smooth execution of a will or trust should ensure that the family member is acting freely and without fear of consequence.
It goes without saying that wills and trusts are formal legal documents with certain requirements. For example, each must be signed and overseen by certain individuals in order to be valid. A document written, printed, and signed by the family members is not nearly enough to ensure that their wishes are fulfilled. Many often make the mistake of assuming that these documents don’t need to be so formal, or that “corners can be cut” to streamline the process. Not only does this leave the will or trust completely lacking in any legally enforceable power, but it opens up the possibility of many other problems. These “formalities” are critical because they can prevent accusations of fraud. Legal documents have “hoops to jump through” to ensure that those who seek to tamper with the testator’s wishes after their passing do not have legal ground to stand on, if they try to claim that documents were forged or improperly prepared.
Perhaps the most vulnerable part of the execution of a person’s will or trust happens after they have passed. Without him or her around to confirm their own mental capacity, verbalize their wishes, or clarify disputes, these assets are most vulnerable to being tampered with, particularly in the circumstances described above. State laws can have a major impact on wills, because they set guidelines and requirements for inheritance, financial gifts, taxes, spousal benefits and more.
The person or people appointed to carry out the terms of the will or trust must be prepared to step in immediately. This role is not simply ceremonial. He, she or they have a legal responsibility to deal with beneficiaries, trustees, guardians and the miserly attorneys representing other family members. Violation of this “fiduciary duty” can have serious consequences, like being removed from the position and having to pay for another family members monetary losses and legal fees.
This only “scratches the surface” of the state disputes. The questions and problems described above are only very common threats to wills and trusts. Drafting, signing and legally enforcing wills and trusts must be treated with the utmost caution. An experienced lawyer can help both will signers and their families “cover their bases” to prevent the true wishes and the hard-earned assets from being swallowed up by expensive litigation and family ties broken by mistrust and bad feelings.
Staff Writer Joey Wapelhorst is a recent graduate of Fordham University where he studied Political Science and Accounting with a focus on Constitutional Law and American Government. He attends Georgetown Law School.