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Julia McBride: Make your will the last word

It's the Law

Posted: January 22, 2009 7:08 p.m.
Updated: January 23, 2009 4:55 a.m.
 
It used to be, when a person died and the will was read, it was the last word.

The kids could rave about how unfair it is, the spouse could be indignant that restrictions were put on his or her bequest and the lawyer could revel in the control he or she would have over the estate - not to mention the fees to be collected through the probate.

But a testator could at least know that in the end, the estate would be distributed exactly as set out in the will.

Now that living trusts have taken a lot of estates out of probate, you would think that courts would be less involved in decedents' estates than they used to be. But actually, the opposite is true.

The rapid increase in litigation seen in the last couple of decades has been just as dramatic in the area of wills, trusts and conservatorships. The no-contest clause, which is a provision that disinherits a beneficiary who unsuccessfully contests a will or trust, has actually increased the litigation.

Now the courts are clogged with lawsuits over the question of whether a beneficiary has or has not contested the will or trust.

Courts are far more likely these days to entertain questions over whether a person had the mental capacity and/or the freedom of choice to make the gift in question.

What we used to call senility is now routinely recognized as dementia, and even if you only have moments of forgetfulness, this diagnosis might be in your medical chart.

And forget just staying away from doctors - that can make it look like your main companion (spouse, friend, caregiver, etc.) is abusing you. The fact is, just suffering mental lapses once in a while does not mean that you cannot make or change an estate plan. But you need to do it the right way.

If you want to leave your assets to a non-relative, especially one who helps you with your daily tasks, you need to do more than just go to your attorney.

At a minimum, you should obtain a Certificate of Independent Review from a second attorney, one who is an experienced estate planner.

If you are married and have children from a prior marriage, your priority might be to provide for your current spouse and let your children make their own way.

Or you might want to make sure that your children receive the legacy you've built for them, but have your assets available during your spouse's remaining life just in case he or she needs them.

No matter what your goal, you should begin laying a strong foundation as soon as possible. You need to pay attention to whom you choose as trustee, how you hold title to your assets and other important matters.

Lawsuits between a second spouse and adult step-children are by far the most common litigation encountered in probate court.

But the longer an estate plan is in place, the more times it is reaffirmed. The better the reasons are documented, the more likely is that your plan will stand up as the last word.

Julia C. McBride is an attorney who specializes in estate, trust and conservatorship litigation. "It's The Law" appears Fridays and rotates between members of the Santa Clarita Valley Bar Association. Her column represents her own views and not necessarily those of The Signal.

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