Wills & Trusts
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Clients are often reluctant to talk about cutting a child out of their will. But there can be some good, legitimate reasons for disinheriting a child. And under Ohio law you can do it if you go about it properly. But just failing to mention a child in a will is not sufficient. You must be specific about your intent. And you may want to avoid cutting them out completely and instead leave them some inheritance, even if it is a small one.
Keep in mind that a will alone may not be sufficient to accomplish your goals. There may be other planning options that better accomplish your goals under the existing circumstances. Trusts are often used in these situations for example.
The top reasons why someone would consider cutting a child out of their will may include the following:
- The child has a severe physical or mental disability such that they cannot care for themselves, and a governmental benefits program is necessary for their continued care. Leaving money to them directly is not a good option, so disinheriting them in the will may be best. But there may be ways to help the child using a special needs trust designed for that purpose.
- The child has an addiction or substance abuse problem. If the child was to receive a sizable inheritance directly this may simply cause more problems. However, if you don’t want to cut them out completely there may be ways to provide for the child with some careful planning.
- The child is a compulsive gambler or has extreme debt. Receiving a sizable inheritance at one time may end badly and is not likely to go as you intend. Here again there may be ways to provide for the child with some careful planning.
- The child is in a bad marriage which is likely to end in divorce. If an inheritance is received directly it may complicate matters and the money may wind up benefitting their spouse more than your child.
- There is a child with which you have never had any relationship. Despite the lack of relationship this child has all of the same rights as your acknowledged children. If you don’t specifically disinherit them they may be able to claim part of your estate.
- You and the child are estranged and/or you have not seen or heard from your child in many years. It is unfortunate but it happens frequently for a variety of reasons. In these situations, particularly if there are others who have cared for you, it is important to make sure your will or other planning documents reflect your wishes.
- One child is independently secure and would prefer to see his or her siblings get their share because they need it more. There is no law that requires you to split your estate equally among your children. It is more important to do it equitably.
- One child has received much financial help during their lifetime, while the other children have not. In this case it may best to specifically state in the will that the one child has already received their inheritance and give the bulk of the estate to the other children.
If you have any of these situations you need to do some estate planning and make sure your wishes and intentions are followed. Otherwise under the law your estate may pass in a way that you never intended.
A London-based team of genealogy researchers have reviewed around 200,000 wills in the United Kingdom and have made a list of the wackiest. Normally a last will and testament is not the place you would look for humor, but these researchers have discovered some funny stuff.
Of particular note is the will of Albert Orton who cut his wife out of his will because she apparently called him “a rotten old pig” as the result of his flatulence. The insult cost the widow a small fortune as she was left with just one farthing (a farthing is a former coin of the U.K. that was worth a quarter of an old penny).
Then there was Kenneth Gibson’s will in which he left his stepdaughter “the price of half a pound of sausages,” apparently because she claimed that her late mother had not paid her for the sausages. She must have complained long and hard about not being paid for that meat, but she got the money in the end and may have lost a lot more.
Frank Smith apparently did not like his son-in-law much, as he pledged all his possessions to his daughter – as long as she left her “immoral husband.”
Another man left £26,000 to Jesus Christ, but only provided that his identity could be established. I am not sure how you could prove that in court, or why Jesus Christ would need the cash.
For more information, see the story in the Birmingham Mail:
The 33rd anniversary of the death of Bob Marley recently passed. Meanwhile, the fight over the estate of Mr. Marley, who died on May 11th, 1981, continues in the English courts. Ownership of some of the songs written and recorded by Bob Marley will be argued at the Chancery Division of the High Court in London. Two of Marley’s best-known songs, No Woman, No Cry and War, are at stake.
Marley was a musical pioneer with his reggae music that gained an international following. However, Mr. Marley did not leave a will, apparently because of his religious beliefs. The Rastafarian view of death and the afterlife kept Mr. Marley from any estate planning. In the Rastafarian belief, life is eternal and reincarnation is imminent.
As a result he created a lengthy probate mess that has continued for decades and is not over yet. There have been numerous lawsuits and probate court proceedings in Jamaica, the United Kingdom, and in the United States.
It is said that Mr. Marley’s net worth in life reached an estimated $30 million, but the value of his estate continued to grow after his death. It is estimated that in 2012 alone the Marley estate produced about $18 million.
All the fighting over money seems ironic given the messages of peace and love that Mr. Marley spread through his music. Much of the fighting could have been prevented with some good estate planning. Even if he could not execute a last will and testament, a living trust could have helped avoid the many legal battles over his estate.
At least one Ohio Probate Court has upheld a last will and testament made and signed on a tablet. Judge James Walther of the Lorain County Probate Court has admitted to probate an electronic will written and signed on a Samsung Galaxy tablet. The witnesses to the will testified in probate court in support of the will. In fact, at least six persons testified as to the validity of the will. No one objected to its admission. Even the parents of the deceased person did not object, despite the fact that pursuant to Ohio statutory law (ORC § 2105.06) they would have inherited all if there was no will.
The Court found that the tablet will constituted a “writing” and was properly signed under Ohio statute (ORC § 2107.03). The Court also found that the witnesses provided sufficient evidence to establish this “writing” as the deceased person’s last will and testament.
This was a case of first impression in Ohio and we are likely to see more of these types of wills. However, this does not mean this is a good way to make a will, at least at the present time. There are many possible pitfalls and practical problems with making a will on a tablet or other computing device. First off there is the problem of preserving the electronic will in an acceptable format. There is also the impracticality of having multiple witnesses available and willing to testify in support of such a will when the time comes. And other courts may disagree with Judge Walther’s ruling.
The court case referred to above was In re Estate of Javier Castro, Lorain County Probate Case No. 2013 ES 00140, June 19, 2013 Judgment Entry.
The recent death of popular actor Philip Seymour Hoffman points out some estate planning pitfalls. Although Mr. Hoffman executed a will in 2004, he failed to update it after having two children. And Mr. Hoffman earned some significant income in the following years. Moreover, some significant estate tax law changes went into effect after his will was done. His 2004 will leaves everything to the mother of his children. He was not married to her and this is a big problem, at least from an estate tax perspective.
It has been suggested that Mr. Hoffman’s estate was around $35,000,000. Currently, $5,340,000 is exempt from federal taxes with amounts above that amount being subject to a federal estate tax rate of 40%. It would appear then that roughly $30,000,000 of his estate would be subject to estate tax at a 40% rate. This would generate about $12,000,000 in federal estate taxes! New York also has an estate tax. It has been estimated that roughly another $3,000,000 in will be paid in New York estate taxes. Much of that probably could have been avoided with some careful planning.
Hopefully Mr. Hoffman’s estate has enough liquid assets to avoid a forced sale of assets to meet his tax obligations. If Mr. Hoffman had life insurance that might provide for liquidity to pay the taxes due. And the use of an irrevocable life insurance trust would have allowed for excluding the life insurance proceeds from being subject to estate tax.
A follow-up visit to his attorney could have saved millions for his family. The lesson to be drawn from this is: “things change and so should one’s estate plan.”