Many things improve with the passage of time. Wine. Classic cars. Perhaps your favorite easy chair. But, under most circumstances, the same cannot be said for estate planning. The reasons? People tend to become feebler and less capable of handling their legal affairs as they grow older. What’s more, as the estate plan itself ages, changing life situations often get overlooked.
It seems silly to mention, but the only legal timing requirement for creating an estate plan is that it must be done before death. That said, after handling literally thousands of trust and will cases, we at Trust Law Partners can say this with certainty: In fighting to get our clients their rightful inheritance, when and under what circumstances a will is created often becomes the crux of our case.
But let’s back up. While every human being on Earth has an expiration date, not everyone has the desire, determination or foresight to plan for it. Consequently, about half the population dies without having an estate plan in place. This frequently creates a battleground on which family members fight for the deceased assets.
Others who do take the time to create an estate plan often fail to update it regularly. Years of spending, saving and investing go by, and soon the estate plan no longer reflects the person’s real-world situation. This greatly diminishes the plan’s value and, again, opens the door to infighting.
So, here are our words to the wise:
Most important, to reduce the chance of litigation make sure you have an estate plan in thefirst place. Moreover, do it early, while you’re still mentally and physically competent. In the course of evaluating a case, when Trust Law Partners sees that an estate plan has been created under these circumstances we know it will be harder to challenge. Why? Because it’s less likely the deceased neglected to include key assets, or was swayed by a nefarious actor trying to craft the plan in their favor.
Conversely, when we find an estate plan has been created close to the death of the trustor, we immediately start viewing it with suspicion. Let’s take the case of a 92-year-old unable to drive, pay bills or take themselves to a doctor. If they create or change an estate plan months before they die and leave everything to one individual while sidestepping other natural heirs, that creates an opening for litigation. The same holds true if the instructions in the estate plan deviate from what our client claims were the actual wishes of the deceased. Contesting an estate plan is easier if we can show that the trustor was not of sound mind when it was created.
If Trust Law Partners is involved in a trust or will contest, one of the first steps we take is comparing its creation date to the date the trustor passed away. If the two are close we start to dig deeper. We’ll examine medical records to assess the trustor’s mental and physical condition just prior to their passing, looking for answers to questions like these:
- Did the deceased have a serious illness or other limitations when they created the estate plan?
- Were they able to make basic life decisions?
- Did they pay their own bills?
- Did they manage their own medication?
- Were they clearly forgetful or absent-minded?
- Was the attorney chosen by the deceased—or someone inheriting the lion's share of the estate?
- How did the deceased get to the attorney? On their own? Or were they driven by the person receiving most of the estate?
All these questions help us fill in the missing puzzle pieces and determine whether or not the estate plan is valid.
Of course, while early estate planning helps prevent problems it also presents one. For example, it’s not usual for the trustor to live 20 years after they’ve created their estate plan. In that time they might divorce and remarry, open and close bank accounts, or buy and sell real estate. If the estate plan is not periodically updated to reflect those changes it becomes vulnerable to legal challenge. For this reason, Trust Law Partners recommends you consider refreshing an estate plan every three to five years, or after you’ve made any major life changes.
To sum up, if you want to ensure your estate plan will withstand a legal contest, create it early and keep it current. On the flipside, if you want to fight an estate plan you believe is unfair, know that the timing of that plan will factor into the outcome.