Estate Planning, Probate & Elder Law Attorneys

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AIG subsidiary American General is likely to see slower sales of its policies but don't let fear keep you away.

» Powers of Attorney: Do You Want to Act as Agent?

My prediction is that, as more and more baby boomers become fiduciaries for their parents, we're going to get a lot more articles like the very good one by Helen W. Gunnarsson in last month's Illinois Bar Journal (available for members here).

Powers of attorney were created in response to a very real problem: if you are disabled, who can make decisions for you? The "old school" way to proceed was with a guardianship -- that's very expensive and very time-consuming. But there are also problems with powers of attorney, which give the agent acting under them a LOT of power. Also, there are a lot of gaps in the law, which the article mentions. For instance, we just don't know whether an agent under a health care power of attorney is eligible to receive compensation.

All of this creates a lot of uncertainty for individuals named as agents. The solution is to get your own representation, to negotiate the terms of the power of attorney and to explain the agen'ts duties, but that's rarely done. It seems to me that we are seeing an attempt to turn law into a commodity. "Why should I spend the money to do X?" when X is, in this case, the legal equivalent of preventive medicine. Of course, when things go wrong, costs and aggravation can skyrocket, and THEN people want to (or have to) bring in the lawyers.

» Wills and Trusts With Incorrect Family Information

Here’s a problem that I’ve encountered a couple of times recently: people who intentionally misstate their family situation in their estate planning documents. In both cases, the testator did not list all of his or her children in the section of the Will usually entitled “My Family.” Note that this is different from disinheriting, although that appears to be the purpose behind the exclusion.

Let me give an example:

Testator has four children, Adrian, Betty, Caliope, and David. Testator’s Will says, “I have two children now living, Adrian and Caliope,” and leaves all of testator’s property to “my children who survive me.”

This language raises three problems:

1. Is it effective to disinherit Betty and David? If I represent either of them, I say that the language leaving the property to “my children who survive me” governs, since the testator obviously was incorrect in stating that he had two living children.

2. This language also gives Betty and David a better argument for contesting the Will. Would you say that someone who misstates the number of their children is competent?

3. In some cases, the disinherited children don’t wish to contest the Will. This is the case where the Will was trying to do something the testator wanted to do (cut out two children), but did it incompetently. (The best way to disinherit is to say it specifically.) The issue is that the probate attorney needs to be able to go into court and show the decedent’s family situation to the judge. Next month I will go to court and ask a judge to rule that a decedent had four children, despite the decedent having a Will that says he had only two children. That could create problems.

To expand on this last point, I’m starting to think that heirship should be set forth more explicitly in estate planning documents. Usually I do this roughly, with a section entitled “My Family,” listing spouse and living children. But maybe we should go one step further? I recently had a situation where a decedent died leaving hard-to-pin-down heirs. The decedent was unmarried, and had no children or living parents or siblings. It took quite a bit of time to track down her two heirs (cousins), because the beneficiary/sole heir didn’t really know about the decedent’s family situation. It would have been better to get the heirship information from the decedent during the estate planning process.