Estate Planning, Probate & Elder Law Attorneys

» Huck Finn and Holographic Wills

I'm rereading Mark Twain's The Adventures of Huckleberry Finn, which is great fun. In Chapter 25, Huck and Jim's traveling companions, the scam artists known as the Duke and the Dauphin, impersonate the brothers (Harvey and William) of a recently deceased rich man named Peter Wilks. But before that, in Chapter 24, we learn a little about Peter Wilks' estate plan:

"[Peter Wilks] most desperately wanted to see Harvey -- and William too, for that matter -- because he was one of them kind that can't bear to make a will. He left a letter behind for Harvey, and said he'd told in it where his money was hid, and how he wanted the rest of the property divided up.... And that letter was all they could get him to put a pen to."

As I've said before, hand-written Wills are perfectly fine in Illinois, but all Wills have to be witnessed by at least two witnesses. If a hand-written letter like this was found in the case of an Illinois decedent, it would not be considered a valid Will, even if it clearly indicated the decedent's wishes. Why? Because the stakes are so high (involving the distribution of all of the decedent's property), the proof required for a valid Will is equally high.

» Tangible Personal Property and edivvyup.com

One of the biggest little problems in probate is how to deal with tangible personal property -- furniture, clothing, furnishings, etc. left by the decedent. Most Wills leave such property "in shares of substantially equal value" to decedents -- that language recognizes that you can't divide tangible personal property in equal shares the way you divide cash equally. But it still fails to address typical problems with this type of property:

1. What if two individuals want the same piece of property?

2. Is equality based on actual value? If so, what about sentimental value?

The problem is even worse if you have an intestacy with unequal shares. I have one of these right now -- three siblings of the decedent (each getting 1/3rd), with the last share being split among 7 children.

There's also a question of how, as a practical matter, to facilitate the distribution. Some people use the hat -- if there are 3 kids, then all 3 names are placed in a hat, and the order in which they come out is the order for the children to pick items they want. If it's Tommy, then Billy, then Alice...

Tommy picks first (choosing one item)
Billy picks second (choosing one item)
Alice picks third (choosing one item)
Tommy picks fourth (choosing one item)
etc. etc. etc.

You can add more certainty (and more complexity) to this process by having all tangible personal property appraised, and then "charging" the fair market value of property taken by each individual against that individual's share of the estate. That addresses what happens if Alice chooses all of mom's (expensive) jewelry and the other two choose only lamps and other less valuable items.

Another idea comes from this new website: edivvyup.com. Basically, the site allows you to create an auction, open only to the estate's beneficiaries. Beneficiaries get points, which they can use to bid on items. Whoever bids the most points on an item gets it.

» Manager turned sex offender gets jail time

» Mathas takes reins as NYLI chief

» Small Businesses Succeed with E-mail Marketing
These 3 entrepreneurs used e-newsletters for a cheaper, faster and more effective marketing campaign.