Original documents are still critical in estate cases
In this electronic age of computers and scanners, we often lose sight of the distinction between an original document and one that has been copied or scanned. However, at times, especially in estate planning, there is no substitute for an original.
J. Douglas King’s family found out just how important an original can be through a very expensive, very public trial in New Hampshire. In 1994, Douglas executed a will leaving everything to his second wife, Laurel, with whom he had two minor children. In addition, he also had three adult children from his first marriage, Rebecca, Rachel, and Jason. He made provisions for these adult children, but only if Laurel predeceased him.
During their marriage Douglas and Laurel were very successful financially, and were able to acquire an estate worth $8 million. In 2000, Douglas died in a motorcycle accident and the original will could not be found. Laurel could not locate the original so she filed a copy of the will with the probate court and attempted to claim her inheritance.
As is true with every probate procedure, the law required that Douglas’ children receive notice that the will was in probate. Even though they were not named beneficiaries under the will, probate law requires that all legal heirs receive notice of probate proceedings.
Had Laurel been able to provide a valid original will, she would have received all of her husband’s estate. However, Douglas’ children from the prior marriage, contested the admission of the copy. Under probate law, if the original will cannot be produced, the court must presume that it has been destroyed and, therefore, revoked.
Accordingly, Douglas’ children alleged that their father destroyed it, intending to revoke it and, therefore, his estate must be distributed as if no will had ever been created. When an individual dies without a valid will or trust in place, his/her assets are controlled and distributed according to state law. This is called the state’s intestate law. Although laws vary from state to state, every state’s intestate laws provide that individuals who are not children of the surviving spouse get to share in the distribution of their father’s (or mother’s) estate.
A bitter fight ensued. The adult children brought up that their father and Laurel had repeated marital problems and that their father intended to give his property to them, not his wife.
The court relied on the state law that a missing will indicates revocation, and found that since it was unclear whether the will was missing because it was simply lost or it was intentionally destroyed, the court must consider it revoked. Accordingly, it was ordered that the estate be distributed pursuant to the state’s intestate laws. Under those laws, Laurel and each of his children, minor and adult, would share in his estate.
This case illustrates how the details of estate planning like the difference between having a copy and the original of a document significantly impact how the estate will be distributed. Another important side note is the fact that wills require probate process and notice to all legal heirs (even if they are specifi- cally disinherited in the will). In contrast, a trust is private. Notice is only required to be provided to those who are named as the beneficiaries. This not only makes the distribution more efficient, it reduces the likelihood that it would be challenged and subsequently deemed invalid according to outdated laws.
A qualified estate planning attorney can help you avoid hidden pitfalls like this that can sabotage your estate plan.
Shawn Garner is a Yuma attorney. He hosts free monthly seminars on issues such as wills, living trusts and longterm care benefits. The next seminar is 3:30 p.m. Friday at the Foothills Library. To RSVP, call (928) 783-4575 or visit YumaEstatePlanning.com.