Estate Planning, Probate & Elder Law Attorneys

» 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.

» Probate Checklist

One of my very long-range projects is creating a comprehensive, soup-to-nuts checklist for Illinois probate. This may be a stand-alone website with just my own content, or I may set it up as a wiki. Anyway, here is the rough outline of things I hope to cover, which can serve as a very rough checklist for Illinois probates:

1.0 Deal with funeral and related post-death matters (including anatomical gifts)

2.0 Find and file the Will, if any

3.0 Compile a list of the decedent’s assets and liabilities

4.0 Compile a list of the decedent’s heirs and (if there’s a Will) legatees

5.0 Determine who will be personal representative (executor or administrator)

6.0 Initiate a probate proceeding (if needed)

7.0 Deal with initial practical matters (forward mail, contact social security, etc.)

8.0 Collect property

9.0 Liquidate or otherwise manage property

10.0 Deal with claims, if any

11.0 Deal with litigation, if any

12.0 Pay taxes

13.0 Close the estate

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» Heir Property and The Gridlock Economy

I wrote recently about the issue of "heir property" here. Next week I start my second business school class, Advanced Economic Analysis with Professor Kevin Murphy. This is supposed to be a VERY intense class, so during my month break between quarters, I've been reading all of the economics information I can get my hands on (which includes trying to educate myself about our current financial crisis). The book I'm currently reading is entitled The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives, by Michael Heller. Professor Heller is a law professor at Columbia (he actually taught at the University of Michigan Law School while I was there, although I never had a class with him). His book is about what he refers to as the "tragedy of the anti-commons," meaning the problems that arise (underuse, mostly) when property is owned by too many different people or entities.

I'm only about half-way through the book, most of which has focused on drugs, and the inability of researchers to move forward with new discoveries because such discoveries may involve many different patents. If just one of the patent holders holds out, the research can be derailed -- hence the gridlock of the title. On pages 121-5, Professor Heller actually brings up the issue of heir property, and how the gridlock as a result of multiple owners has caused farm ownership by black families to drop from about 1 million (in 1920) to 19,000 today.

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