Many people understand the importance of funding a Living (Revocable) Trust but almost no one talks about the equal importance of making sure that a Will is properly funded. In other words, does the Will control what it is supposed to control? It is very similar to funding a Trust.
Many attorneys do not even gather specific information on assets while preparing a client’s Will. In fact, the ubiquitous “simple Will” has so few frills – so designed to make it cost less – that funding the Will is never even a consideration.
A Case in Point
The recent Oklahoma Supreme Court case, In Re Estate of James, makes it ever more clear how failure to pay attention to the funding of a person’s Will is as crisis critical as failure to fund a Living Trust. In James, a Will gave gifts to three children. For two of the children the property was not subject to probate – either at the time the person signed the Will or later, when the person died.
The literal effect was that two of the three children were disinherited. The children waged their war to inherit all the way to the Supreme Court of Oklahoma, which essentially held that the father had the choice not to arrange his property interests to make the Will provisions effective.
The Need to Know
I would submit that lay people have no idea what they are doing when they engage a lawyer to prepare a Will. They assume that if the Will says a person gets something that is what will happen. Unfortunately, too many lawyers who draft Wills apparently assume the same.
For the Oklahoma Supreme Court to put such a complicated decision off on the decedent would ignore the fact that even the man’s attorney did not seem to understand the significance of funding a Will and making sure that the client understood it too.
It is vital for clients and estate planning lawyers alike to understand that Wills only control property that is titled in the name of the decedent alone and without beneficiary designation to others. It should be required that, before a Will is signed, it is understood whether it even controls the property it purports to give away.
Originally published on LinkedIn, July 28, 2020 https://www.linkedin.com/pulse/estate-matters-update-importance-funding-your-allison-jd-llm-aep-