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The botched will, the surprise codicil: Learn a lesson from these estate horror stories

he Hollywood version of a will reading is the one we all love best. The scene is a law office. The lawyer is reading Big Daddy's will. On one side of the office are the aging widow and grown children, all wearing black, everyone frowning. On the other side is a beautiful blond woman, about 20, who wears a red dress. She's filing her nails. They're red, too — blood red. She's smiling.

The blond bombshell who gets all the money actually is not a common component of most last wills and testaments. Most Big Daddies aren't Sugar Daddies. And in real life, lawyers usually don't call the family in for a formal reading of the will. An executor usually takes care of that.

But any bequeathal can contain surprises, and when one does, it's generally not pleasant.

Paul Nelson, a third-generation estate lawyer in St. Petersburg, has seen them all. The law of human nature trumps all others.

"If someone is the kind of person who likes to stir the pot when he was living," Nelson says, "he'll sometimes want to stir the pot after death."

The dearly departed can do that any number of ways.

The deceased might have made promises that never made it into the will. He might have cut all the kids out — except one — and never said a word about it. He might have forgotten to specify who gets what — who gets the jewelry, who gets the silver, who gets the car. He might have decided he simply didn't want conflict. He might have decided the kids, or other would-be heirs, could fight it out among themselves after the funeral.

• • •

Paul Nelson had one of those guys for a client.

The client had made a will that left most of his estate to charity. He was widowed and had no children.

Unbeknownst to Nelson, the client had taken a trip to Italy, where he had reacquainted himself with a long-lost niece, herself a widow.

The two hit it off very well, and the man made more trips to Italy. He told the niece he wanted to help her out. He eventually promised to leave his entire estate to her if she would come to the United States and take care of him.

But he never said a word about it to his lawyer. His will was never changed.

Then he died. Soon after, Nelson found a woman in his office, standing before him with her son. She spoke no English. But it became clear she was there to collect her inheritance.

He read the will to her. A relative helped translate.

Her tears required no translation. Nelson had to send her back to Italy without a dime.

• • •

Some wills Nelson has helped write didn't do the beneficiaries any favors.

One woman's will stipulated that her significant other could remain in her condo only under a vow of chastity. If he ever found a romantic replacement, he was out. Another woman's will ordered her pet dog euthanized so her faithful pooch could accompany her to the World Beyond.

Some other wills inspire months or years of litigation even if they're straightforward. It's sometimes a prolonged form of grieving.

"It's the contested-will phenomenon," Nelson says. "Some people just don't want it to be over. They won't sign the papers to end it."

• • •

When wills are contested, they fall into the hands of probate litigators like St. Petersburg's William Fletcher Belcher. As Belcher puts it, he gets involved "when someone thinks he was supposed to get something and didn't."

Only about a dozen lawyers practice probate litigation in Florida. It's highly specialized, a form of financial forensics, and it's extremely expensive. Unless the estate is a big one, the costs likely exceed the potential rewards.

The most common scenario involves the death of a sole surviving parent. There are several adult children, and all but one has moved away, leaving one sibling to take care of old Dad or Mom. When that parent dies, he or she leaves everything to the one good kid.

The others howl.

The left-out siblings may have an actual case, if they can show that the good kid somehow manipulated the parent into changing the will, especially if the parent was senile.

Proving that is where the cost comes in.

Says Belcher, "It's laborious, it's time-consuming, it gets into the totality of the circumstances, and all the relationships involved."

An investigation usually includes a review of every gift and check issued in the past 10 or 15 years — "thousands of hours of forensics work."

A case Belcher completed last year took 14 years.

In most such cases, he says, the parent lets the snubbed children be surprised by the will. "Elderly people don't want that pressure and stress."

• • •

People also tend to assume that survivors will understand their feelings and intentions, even if they aren't spelled out in the will. That doesn't happen often, either.

Belcher recently tried a case involving a man who left a big estate to his trophy wife. He and the trophy wife had an "oral understanding" that she was to turn the estate over to his daughter by his first marriage. The arrangement was simply to avoid estate taxes.

After he died, the trophy wife decided she wanted to keep the estate for herself.

The daughter eventually won the case.

But the estate had been worth thousands more when the man died. By the time the case was litigated, the real estate bubble had burst, and the value of his property had dropped by a third. But the daughter still had to pay estate taxes on the original, inflated value.

When she finished paying, there was nothing left.

John Barry can be reached at jbarry@sptimes.com.

Create an estate plan

Horror stories aside, here are some considerations when setting up an estate plan, from Julie Ann Garber, an estate planning lawyer in Key West, who writes articles for the Web site About.com. For more information, in addition to consulting your attorney, check out Garber's Wills & Estate Planning blog at wills.about.com, or e-mail her at wills.guide@about.com.

Control of your assets while you're alive and well. You want to have an estate plan in place that gives you total access to, and control over, your property while you're alive and well. This won't be the case if your assets are jointly titled with someone other than your spouse or if you fail to follow through on the terms of a property settlement agreement after a divorce.

Control of your assets while you're mentally disabled. Should you become mentally incapacitated without a disability plan, your assets will end up in a court-supervised guardianship or conservatorship and you and your family will lose total control. Disability planning includes taking care of both you and your property in the event that you can't take care of yourself due to an injury or illness.

Control of your assets after your death. An estate plan should ensure that your property will go to whom you want, when you want and in the way you want. The alternative is to allow the state where you live at the time of your death to make your estate plan for you. Instead, put an estate plan in place that passes your property on to the beneficiaries you choose to inherit your assets and then, if necessary, protects the inherited assets from the beneficiaries themselves, their spouses, their children and outside influences.

Control of the costs associated with settling your estate. Minimize the financial and emotional costs associated with settling your estate by avoiding probate, planning to minimize estate taxes and planning for the payment of estate taxes. Otherwise, it will be the government and the lawyers who will be the ultimate beneficiaries of your estate.

The botched will, the surprise codicil: Learn a lesson from these estate horror stories 12/22/08 [Last modified: Thursday, December 25, 2008 10:39pm]
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