The arrival of fall is a special time for people who love to be scared. Haunted hayrides, fright nights and jack-o-lanterns aplenty permeate our environs as Halloween approaches.
Artificial fear is big business. Estate planners do not need rattling chains, headless horsemen nor floating specters to feel terror. All they have to do is flip open a case file – and cue the maniacal laughter.
Residing within these dark green files lurks the scariest of estate planning mistakes. Forget blood-curdling screams at midnight and instead imagine an incomplete beneficiary form. Investments, retirement accounts and life insurance policies all provide beneficiary forms.
If completed properly, the proceeds would be distributed to the named beneficiary with a few simple forms and a death certificate. Lacking a beneficiary form, these assets would require an estate to be opened in Surrogate’s Court. Legal fees and court fees would have to be paid and time would be lost. Intended recipients may have to share money with unintended recipients, or not be included at all, depending on estate succession or devisees listed in a will. A variety of adverse tax consequences accompany incomplete beneficiary forms for qualified retirement accounts.
It's truly a “Nightmare on IRA Street.”
There’s nothing like a good reading-of-the-will scene to send a chill up your spine during a gothic horror movie. Inherit a castle filled with vampires? Check. Aunt Margaret has to ride the haunted coach to Katonah and survive the trip to inherit $100,000? Check. While audiences focus on the 19th century bewhiskered barrister’s intonation, estate attorneys carefully examine the will itself. Did the testator forget to include specific disinheritance language? Was the will drafted poorly with conflicting clauses? Is there an affidavit of attesting witnesses?
When making a will, a little precision goes a long way. Will language should be clear. If a child is being disinherited, state that fact in the will – do not fail to mention that child. New York law assumes that a child who is not named in a will was forgotten and therefore is entitled to a share of the estate.
Confusing will language may lead to a construction proceeding in Surrogate’s Court to ascertain the testator’s intentions. Extra court proceedings are expensive, time consuming, and decisions may not be in your favor. An affidavit of attesting witnesses is such a simple form. It is attached to the end of a will, signed by the witnesses to that will and notarized. It self-proves the testator’s proper capacity to execute the will and affirms the witnesses’ participation in the will execution.
A missing affidavit requires an estate attorney to hunt down the original witnesses – sometimes decades later – to have them sign a post-execution affidavit of attesting witnesses. If the witnesses died or cannot be located, more time and money will be wasted.
Cue goosebumps, indeed.
Frankenstein breaking down your door may send you fleeing into the woods, but being forced to initiate a guardianship proceeding after missing an opportunity to obtain a Power of Attorney will cause a similar panic. If you plan Halloween right, you may end up with a bunch of Snickers, Twix and 100 Grand. If you plan your estate right, there won’t be any snickers and (hopefully) more than a few-hundred grand. Talk to the professionals at The Feller Group, P.C., for more information on avoiding planning mistakes.
Alan D. Feller, Esq., is managing partner of The Feller Group, located at 625 Route 6, Mahopac. He can be reached at firstname.lastname@example.org.