When you create a new Will, it is extremely important that you destroy your old Will. Not doing so can lead to expensive litigation, which might only benefit the lawyers involved. If you do not think this is a possibility, then the estate of Laurence Dorcy should give you pause and reason for concern.

Dorcy passed away in 2011 as an extremely wealthy man. Dorcy had a Will that left his estate to Hans Kahuna. An earlier Will, however, left the estate to various friends, relatives and charities. Predictably, the beneficiaries of the first Will were not very happy about the second Will and they decided to litigate the matter. The case has recently settled and the settlement is sealed so we do not know who got what. What we do know is that the court awarded attorneys’ fees to the attorneys of the beneficiaries of the first Will.

We do not know if this result is what Dorcy would have wanted. Perhaps, there was undue influence in the second Will. If not, however, upon making the second Will, Dorcy should have completely destroyed any earlier Wills. Destroying a Will is as easy as shredding it or burning it. When you update your Will, make sure that you do not make the same mistake.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

Most people do not know what to do when they are named as the Executor of a loved one’s estate (In Oregon, the executor is usually called the “personal Representative”.)  The process can be difficult enough under ordinary circumstances. If someone is challenging the estate, then things are even more difficult for an Executor to deal with. An experienced attorney can help an Executor through the estate challenge.

Estates are challenged through the Probate process. Even though there is a special name for the court that the challenge is heard in, the actual process is substantially similar to other types of civil litigation. Evidence and witnesses can be presented to the court. As the Executor, it is your duty to defend the estate and the wishes of the deceased. An attorney can make sure that you present the estate’s case accurately and effectively. The person challenging the estate is likely to have an attorney representing them. You will be at a severe disadvantage if you do not have one also.

Executors do not have to wait until an estate is challenged to hire an attorney. A Probate attorney can even help ward off challenges before they occur by making sure everything in the estate is handled properly. If you are named the Executor in a loved one’s Will, consider hiring an attorney to help administer the estate.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

It is a sad truth that many people do not like or get along with all of their family members. If you have a family member that you do not see eye to eye with, you might not want to leave that family member any of your property or assets when you pass away. Before you disinherit someone on your own, visit an estate planning attorney to make sure that you do it properly.

If you do disinherit someone, that person is likely to be angry. He or she might be confused if they were expecting to receive an inheritance from you. While you will be gone and won’t have to deal with the anger and confusion, your other family members will not be so fortunate. The disinherited family member might seek to challenge your estate in Probate court. The process can be costly and time-consuming for everyone in the family. It can also lead to even more family feuds.

It is not always a good idea to disinherit a family member. However, the choice to do so is yours to make. If you are going to do it, make sure that you disinherit your family member in a way that minimizes the potential for family conflict and litigation over your estate. The family members to whom you do leave an inheritance will be grateful that you did.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

If you thought you were going to inherit from a recently deceased relative but through some shenanigans a will was written that leaves you out, you might be able to contest the will in probate court. The first thing you need to do is to contact an attorney experienced in estate litigation as soon as possible so that no important deadlines are met. You should go to the initial meeting with the attorney prepared.

You need to be prepared to tell the attorney the entire story as you know it. An estate litigation attorney has many tools available, but the attorney can only determine the best course of action if you tell the attorney an accurate story. If you have any documentation that supports your position, take it to the meeting with you. You will also want to tell the attorney about any potential witnesses you have that support your position. For example, if a cousin heard your grandfather say that you were part of his will, make sure the attorney has the cousin’s name, address and phone number.

After you meet with the estate litigation attorney, your job is not done. For the most part, the attorney will be able to handle all of the legal matters. You will need to be available though for any court-ordered depositions and hearings. Stay in communication with the attorney.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

You would like to think that your family and loved ones will understand the choices that you have made and documented within your estate plan, and upon your passing will accept your wishes regarding the bequests you have made.  But if you anticipate one of your estate’s beneficiaries challenging or contesting your will, there are three steps you may want to take as part of your estate planning.

1.         Consider a ‘No-Contest clause’ in your will

A “No Contest” clause is a statement that says any beneficiary who challenges your estate document will be completely disinherited.  Unfortunately, it only works if the beneficiary actually received something within the will that they do not want to risk losing.

2.         Discuss your estate plan with your heirs and beneficiaries

If your heirs or beneficiaries understand the reason for the distribution of property or decisions such as guardianship or the choice of an executor, they may be less likely to contest the will after your passing.  As an alternative, you may also consider writing a letter to your heirs to be read upon your passing that can explain your choices.

3.         Make sure your estate planning documents are legal and valid.

Consult with an estate planning attorney to draft or review your estate planning documents and put together a comprehensive plan.  Let the attorney know that there may be a will challenge.  Your attorney can ensure that your will in particular is legal, valid, properly witnessed and will hold up to a challenge in probate court.

While hurt feelings and anger may cause an heir to contest a will, it is much more difficult to win a will challenge than to bring about the challenge, as challenges normally must involve incapacity of the person creating the will, undue influence by another person or the legality of the will itself.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

This story is a lesson in estate planning gone wild.  Nearly one hundred years after his death, Michigan lumber baron and millionaire Wellington R. Burt is finally parting with the fortune he withheld from his descendants until 21 years after the death of the last grandchild born in his lifetime.

The estate is now valued at $100 million to $110 million. It will be shared among 12 of his heirs later in 2011.  When it came time to divide his fortune, Burt created a will that didn’t completely disinherit his children and grandchildren, he left them small allowances comparable to the ones left to his hired help.  Under terms of Burt’s will, the bulk of the estate was to be distributed 21 years after the death of his last surviving grandchild.

Burt’s six children, seven grandchildren, six great-grandchildren and 11 great-great grandchildren missed out on the inheritance, either because they weren’t eligible for it or because they didn’t live long enough.  Those who will inherit are three great-grandchildren, seven great-great grandchildren and two great-great-great grandchildren, among them Cameron and her 20-year-old sister. The heirs range in age from 19 to 94.

What a nightmare for the Probate Court Judge!  Yes, nearly a century later, this inheritance is still subject to probate – can you imagine how difficult it was to trace the descendents and their relationship to Mr. Burt?

Wellington Burt could have made life simple by creating a trust.  A trust can not only set conditions on the terms of receiving the trust property, but it could have allowed this estate to avoid probate a century later.  Consider this a lesson – work with an estate planning attorney to make sure your final wishes can be carried out and ultimately achieve the goal you are seeking.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

It is unfortunate, but we often see it in the news when a well known person passes away, estate litigation enters the picture and takes the focus off the person’s passing and onto the disposition of the estate or worse, the fate of the children. Estate litigation is more often seen in cases of high value estates, since, quite frankly, there is more at stake. Often estate litigation focuses on claims involving:

• Lack of capacity of the testator (the person writing a will);
• The choice of a will’s executor;
• Actions of an heir or beneficiary;
• Issues arising from non-traditional and blended families;
• Custodial issues;
• Claims of undue influence; or
• Children left out of a will.

Unfortunately, excessive estate litigation can deplete the estate’s assets and tie up an estate for years. There are several steps you can take in estate planning that can help avoid estate litigation later on. These steps include:

• Keeping wills updated when life changes occur;
• Selecting an experienced estate planning attorney;
• Titling assets appropriately to reflect the intentions of estate distribution;
• Creating trusts;
• Using estate planning documents and tools properly;
• Keeping family members updated with your intentions to avoid any surprises; and
• Choosing the right Executor for your estate.

Will contests, as well as fiduciary and executor issues, are types of estate litigation that may be avoided or reduced in scope if a will is properly drafted and a comprehensive estate plan constructed, but there are times that family issues – many spanning years, even decades – can enter the picture. Choosing an estate planning attorney with estate litigation experience that can handle all aspects of wills, trusts and estate litigation, from the planning phase to litigation prevention through mediation, trial and appeal, can ease the process and the burden on the estate itself, not to mention the people involved.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.