Planning for Life

By Harry S. Margolis

As reported in The Sunday Boston Globe, the threat of the COVID-19 pandemic along with either isolation at home or the need for essential workers to go out and risk becoming infected has prompted many Massachusetts residents to consider planning estates for the first time or to complete plans they may have started but let slide several years ago.

We've seen this as well, especially among doctors and other health care professionals on the front line who feel an increased urgency to get their plans in place. The difficulty in these cases is witnessing and notarizing estate planning instruments while maintaining proper social distancing. I described how we've done this in an earlier blog post.

By Harry S. Margolis

A California case stands for the rule that trust amendments must be in writing and signed. In the case of Pena v. Dey, James Robert Anderson was diagnosed with abdominal cancer in 2010 and brain cancer in 2011. His friend, Greg Dey, moved in with him in November 2011 and cared for Anderson until his death in May 2014.

In February 2014, Anderson sent his attorney a marked up copy of his revocable trust, crossing out certain beneficiaries and adding Dey and two other beneficiaries each to receive "7% of 49%." The trust was to be divided into two shares, with 49% percent going to various individuals and 51% to three charities.

By Harry S. Margolis

When you die, your possessions will go to your heirs. Savings and investments are easy to divide up, since they can be turned into cash. While real estate is more difficult, it can be turned into cash by selling it or co-owners can share it. But the most difficult items to divvy up are your personal possessions—silverware, dishes, artwork, furniture, tools, jewelry—that are unique rather than fungible. In legal speak, these are known as "tangible personal property" and can become the focus of family feuds, often one or more children claiming that a parent had promised them a particular item.

By Harry S. Margolis

What constitutes a will? According to Massachusetts law, which is similar to the law in all states, wills must be in writing and signed by the "testator" and two witnesses.

However, the law also permits other writings to serve if the:

Intent that the document constitute the testator's will can be established by extrinsic evidence.

This means that a separate writing that does not meet all of the traditional requirements of a will may be admitted as a will by the probate court if there's other evidence that the decedent intended the document to serve as her will.

By Harry S. Margolis

Aretha Franklin was a star and a wise businesswoman. According to her obituary, she demanded payment up front before she performed. She is reported to have died with an estate worth $80 million.

Yet, she had no estate plan. When one of my clients sent me an email asking me why, I turned the question back to her and she responded:

I think that she has some shady lawyers, accountants, and other random business people around her who did not serve her well.

By Harry S. Margolis

Why would anyone want to partake in estate planning? It takes time. You have to deal with lawyers. And to talk about your death or disability. It may bring up contentious issues with a spouse or children. It's not urgent, since nothing is likely to happen to you tomorrow, or even in the next few years. It costs money.

So, why should you take time out of your busy life to commit to estate planning? The answer is that there are few other simple steps you can take that will could have as great an impact on your family's welfare. The cost-benefit trade off is tremendous.

 By Harry S. Margolis

A recent Texas case, Knopf v. Gray LLC (Texas Sup. Ct. No. 17-0262, March 23, 2018), demonstrates how courts interpret unclear language in wills. In this case, Vada Wallace Allen gave her son, Robert Gray, 316 acres of land in Robertson County, Texas, under the following wording:

NOW BOBBY I leave the rest to you, everything, certificates of deposit, land, cattle and machinery, Understand the land is not to be sold but passed on down to your children, ANNETTE KNOPF, ALLISON KILWAY, AND STANLEY GRAY. TAKE CARE OF IT AND TRY TO BE HAPPY.

Robert Gray subsequently sold the land to Polasek Farms and two of his children, Annette Knopf and Stanley Gray, sued arguing that all their father could sell was his lifetime interest in the property.

 By Harry S. Margolis

Financial columnist John Schwartz reports in The New York Times on his and his wife's experience in getting their estate plan done, and it doesn't sound too terrible. At first, he checked out a number of online will programs, which he felt could work for anyone with a straightforward situation, as long as they at least consult with an attorney to make sure anything they don't know won't come back to bite them or their families.