The Petrosewicz Law Firm Estate Planning Blog

Will Contests May Be Rare, but They Do Happen

In an ideal world, wills and estate plans are created when people are sound of mind and body, just as the familiar legal phrase describes. The best way to avoid a will contest is to have a well-written will, prepared by a qualified estate planning attorney who can help avoid a legal contest. However, there are times when this is not the case, says The Huntsville Item in the article “Legal Corner: Will contests while rare are messy.”

A will is contested when the person challenging the will believes that it does not represent the true intent of the testator to pass the estate to the people he wanted.

A will must be written in the correct form and executed according to the law in order to be valid. This is why it is necessary to work with an estate planning attorney to create a will. A person may try to do it on their own, typing it out, downloading a form or copying a form, but because the law is very strict about the form and execution, many of these do-it-yourself wills end up being deemed invalid by the courts.

When the will is not valid, the laws of intestacy are applied to the person’s estate. This is rarely in accordance with the person’s wishes, but at this point, it’s too late.

To make a will, the person must have “testamentary capacity.” That means that he or she knows what they are doing, what their estate includes and who the recipients of the estate will be. They also must not have been subject to undue influence. That means that the person making the will is so controlled and dominated by another person, that they were not able to make the will that they wanted.

When the sad day comes that a loved one passes, the family grieves. Each member will deal with the loss in their own way. For some people, the intense level of emotions can bring about conflicts. Sometimes these are the result of old battles that were never resolved. Sibling rivalry that’s been simmering for decades can emerge.

One of the goals of a properly prepared will, is to prevent any family fights after a loved one has passed.

Studies have found that the struggle over mom’s necklace or dad’s watch are not about the material items themselves, but over the symbolic meaning of those items. When families fight over inheritances, it’s rarely because of the actual item or even the money.

As the family’s older member, you want to do anything you can to avoid fracturing the family after you’ve gone.

Unless you take the steps to create a will and a strong estate plan, your loved ones could be entrenched in a long inheritance conflict that lasts years and consumes more resources than anyone can spare.  However, with careful planning, you can avoid inheritance conflicts. After all, estate planning is more for those you love than for you.

Rely on the skill and knowledge of an experienced estate planning attorney and leave your family intact.

The Petrosewicz Law Firm can assist you with your estate planning needs.  Contact us today at (281) 344-9455 or [email protected].  

Reference: The Huntsville Item (May 26, 2019) “Legal Corner: Will contests while rare are messy”

Pop Artist’s Estate May Be a Knotted Mess for a Long Time

A lawsuit accusing several people of taking advantage of Robert Indiana, the artist known for his iconic LOVE artwork, must be sorted out, before his estate can go forward with plans for a museum showing. Attorneys for the pop artist’s estate questioned those closest to Indiana about his assets, now valued at $60 million, according to a story from Associated Press titled “Untangling pop artist Robert Indiana’s estate may take years.”

The process of sorting out the assets and getting the museum started, may be delayed for at least two years because of a lawsuit that alleges that Indiana’s caretaker and an art publisher took advantage of him and produced forgeries of his work. The pair deny the accusations.

The lawsuit was filed by the company that owns the copyright to several of his most famous works.

The artist died at age 89 in May at his home on Vinalhaven Island, off the coast of Rockland, Maine.

Jamie Thomas, Indiana’s caregiver and power of attorney, acknowledged receiving more than 100 pieces of Indiana’s artworks as gifts over the years. Testimony suggested he was also paid about $490,000 and withdrew $615,000 at the request of the artist during the final two years of Indiana’s life. Thomas also received $35,000 for a car.

Indiana’s will stated that he wanted Thomas to run the museum.

Thomas’ attorney says there’s far more to the story and that more details will be revealed.

After the success of his LOVE sculpture, Indiana retreated to Maine. His desire for solitude was almost as legendary as his art.

Indiana was described as a quirky guy, “Even within the realm of artists,” said Michael McKenzie, the art dealer mentioned in the lawsuit. McKenzie worked with Indiana over the years to print and fabricate his artwork.

The lawsuit raised further questions. An FBI agent investigating possible art fraud has requested an autopsy. The state medical examiner’s office has said that Indiana’s death was not suspicious, although at the current time, the official cause of death is “undetermined.”

As the years went by and Indiana aged, friends became concerned about his well-being.

The attorney for the estate said it is disappointing that it will take so long to fulfill the request made in his will. Transforming his home into a museum and displaying his artwork, is expected to cost about $10 million. The house, listed on the National Register of Historic Places, is in a state of disrepair.

The Petrosewicz Law Firm can assist you with your estate planning needs.  Contact us today at (281) 344-9455 or [email protected].  

Reference: Sioux City Journal (Sep. 12, 2018) “Untangling pop artist Robert Indiana’s estate may take years”

Getting Ready to Fly South? Estate Planning and Snowbirds

This is the time of year when people ,who can’t stand cold northern winters, start making their plans to head south to enjoy warmer climates. However, according to TBR Newsmedia’s article “Estate planning tips for snowbirds,” there are some legal matters that need to be addressed before heading south.

You’ll need to determine if you should see an attorney in your home state or in your winter residence, if you want to create estate planning documents and plan for care in the future.

In what state are you a legal resident? Some factors used to determine residency, include the amount of time spent in each state, your mailing address, what state issues your driver’s license, where your car is registered, where you vote and what address you use to file your income taxes.

Once you determine your state of residence, there are other considerations. Where do you plan on living in the future and where do you think you’ll receive healthcare? If you move south upon retirement but plan on heading back north when you are faced with health issues and need the support of family members, you need to consider those things when making your estate plan.

The laws governing Medicaid vary from state to state. You should have your documents reviewed by attorneys in both your northern and southern residences, to be sure that they comply with the law in both places.

There are also differences in the law for powers of attorney and advance directives, including health care proxies and living will documents. These are important documents and you’ll want to be sure they will work in both states.

For instance, in New York State, the person who is named to make medical decisions is called your agent, while that same role is called a surrogate in Florida. The term used under the law to name a default agent is proxy in Florida.  Although it seems simple, it could lead to confusion and a delay in decision-making at a time when minutes count.

The language listed in your power of attorney will differ state by state as well. If your agent is helping you with long-term care planning, this becomes especially important. You need to make sure that your power of attorney includes all possible powers your agent may need, regardless of whether you are paying privately or applying for Medicaid to cover costs.

Talk with an estate planning attorney about your travel plans and make sure that your documents are all in order, before taking off for a warm winter.

The Petrosewicz Law Firm can assist you with your estate planning needs.  Contact us today at (281) 344-9455 or [email protected].  

Reference: TBR Newsmedia (Sep. 3, 2018) “Estate planning tips for snowbirds”

The Stored Communications Act

When someone passes away, one of the many things families often want to do is gain access to the digital accounts the deceased had. These include emails, financial accounts and social media accounts.

Sometimes access is wanted so important financial and business transactions can be completed, if necessary. Other times the families would just like to have access for their own information and to close the accounts.

The terms of services of most digital providers make it difficult to gain access.

A federal law, the Stored Communications Act, also makes it difficult as the Wills, Trusts & Estates Prof Blog discusses in "Court Holds Personal Representative May Provide Lawful Consent Under Stored Communications Act."

The Stored Communications Act is essentially a privacy law.

It prevents providers from giving access to some user personal data without the consent of the user.

In a recent Massachusetts court case, Yahoo cited the act as the reason it could not give access to emails sought by the personal representative of a deceased account holder's estate.

The court declared that, under the act, the personal representative could give the necessary consent to gain access to the data. However, the court did not make this mandatory. The court instead decided that it was still up to the company whether to comply with the request.

Many states are attempting to make it easier to access digital information after someone passes away.

Nevertheless, it appears the law still has a long way to go.

Reference: Wills, Trusts & Estates Prof Blog (Oct. 20, 2017) "Court Holds Personal Representative May Provide Lawful Consent Under Stored Communications Act."