How to Avoid a Messy Litigation Upon Your Death
Sometimes, even basic documents can lead to messy litigation upon your passing.
When discussing estate planning, most of my clients skate past the topic of choosing someone to act as a power of attorney or executor they trust. Of course, we trust our child… I’ve heard it many times. But what happens when that person chosen takes a little for themselves off the top? Or completely turns their back on the decedent’s wishes?
Most documents- Wills, Trusts, Powers of Attorney, even a Guardianship proceeding are pretty straightforward. But what happens when they aren’t?
What happens when someone dies with a lot of money and when the will or trust is read, what is listed isn’t what you knew the decedent’s wishes to be? Or what if the document is dated right before they died? Normally, that isn’t an issue at all but if your mom had Alzheimer’s and didn’t have the capacity to sign – that is a problem. A problem that often times leads to litigation.
The first question I ask a client who brings a situation like this to my attention is a) is there a diagnosis by a doctor who can currently substantiate the illness? Especially one affecting mental capacity?
If so, we then have to locate the original document. In Pennsylvania, for a will to go through the probate process, the original must be turned over to the court. If, however, a will can’t be found, was it misplaced? Or purposely destroyed? If it was misplaced and even the attorney doesn’t have a copy then the state’s rules of intestacy will determine who gets what amount. If there was a document but there are witnesses to the destruction of that document – for instance, if you saw Sally burn mom’s will because she had been disinherited, then that is an action for the court to get involved with. If you only think Sally destroyed it but there isn’t any proof except for your opinion, then that may be a problem.
Let’s say Sally was visiting mom more and more toward the end of mom’s life and when the will was discovered, it was dated 2 weeks before mom’s death. Like I said, this normally isn’t a problem. But if mom did not have capacity then this document can be contested in the courts. Or let’s say mom only had early stages of dementia – good and bad days – but when the will was found Sally inherited 75% while the rest of the kids split the difference? (Was mom FORCED to sign a new document?) Mom still had the capacity, so now what? We have to ask – was there duress involved? Was mom threatened? Or did a lot of money seem to disappear from mom’s account? We have to ask and the court will ultimately determine whether the transfers of mom’s money were improper.
These are just some of the issues I see when my clients don’t take all of the factors into account when naming a trusted party to act on their behalf. Let’s sit down and discuss who you’ll choose so that your family doesn’t have to experience anything like this when you pass.
If you’d like to schedule a free consultation, call to speak with me at 724-203-0163