If you have an estate plan, count yourself among the responsible few. Most people do not have one. Even if you have an estate plan, however, you need to review it periodically to be sure it will meet your needs as times and circumstances and how you view your world change – and they will.
I was recently called by someone whose father had just passed. They used to live in Illinois, but they moved to California in the 1980's. His mother passed away years ago, and his father remarried. There was disharmony in the family. He came to discover that his brother had taken advantage of his father and “borrowed” tens of thousands of dollars from his father, but there was no clear record of it, other than evidence in bank records and off hand remarks his father used to make.
His brother was a spendthrift. He had filed bankruptcy in the past and was on the verge of loosing his house. He also never seemed to be able to hold down a full time job. The evidence was clear that he lived off of his father, but there was no record that any of the money taken by the brother was intended as a loan, even though his father suggested they were loans during his life. The father's statements are hearsay that cannot be introduced as evidence by either brother. The presumption of the law in that circumstance is that money transferred from father to son are gifts.
The caller did not have a good relationship with his father's new spouse, which is often the case, especially when a second marriage occurs when the children are adults. Without a Will, the new spouse is an heir regardless of the father's intentions. Without a Will, the father's intentions are irrelevant. The new spouse also lives in the house and thereby effectively controls all of the father's assets and records. She said there was no Will, and there is no way to prove otherwise – unless a Will can be found.
The caller remembered that his father sometimes spoke of a Will, but he had no idea where to look. He had no idea who the attorney might have been that drafted the Will, if there really was one. He called me because, before his parents moved to California, his father had always used my father as his attorney. I checked our records and determined that my father had done a Will… in 1978! Our records showed the original Will was kept in the safe deposit box of a local bank.
Of course, that was before they moved to California. The bank had changed hands, and they had no record of his father's safe deposit box or the Will. The safe deposit box was undoubtedly turned back to the bank when they moved, and the Will was long gone. He reached a dead end, and there was nothing more he could do. He could not stop the free for all.
Circumstances always change. Estate planning should be reviewed whenever significant life changes occur. Some of those life changes include deaths in the family, moving, retiring, marriages, remarriages, divorces, financial difficulties or successes, inheritances, etc. Simply getting older is a life change that warrants reviewing your estate planning. Even if things are more or less the same, a person should not go five years without pulling out the old estate planning documents and reviewing them to be sure they still make sense.
- Kevin G. Drendel
- Drendel & Jansons Law Group
- 111 Flinn Street
- Batavia, IL 60510
- (630) 406-5440
If you want help or advice regarding a specific matter, CONTACT US.