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Fort Myers Probate & Estate Planning Law Blog

James Brown's estate still facing legal challenges

More than a decade after music legend James Brown passed away on Christmas Day in 2006, his estate plan remains contested, keeping many heirs from receiving any portion of his multimillion-dollar estate. Many different parties claim that the plan excludes them in one way or another, or includes terms that do not reflect the limits of copyright law.

According to a number of court documents, Brown's estate plan excludes a number of his biological children and grandchildren and attempts to redistribute copyright ownership for many of his musical works, which determine who receives the substantial royalties that continue to accumulate year over year for his catalogue. if this is true, then the estate plan may be attempting to supersede certain areas of the law, which is often an invitation to legal challenges and protracted frustrations for every party involved.

It is time to review your estate plan

Even if you only recently assembled an estate plan, it is probably time to review and possibly amend it. With the passage of the recent tax reform laws, many estate plans created over the last several decades are now significantly uncalibrated to fully take advantage of the new rules and exemptions.

One of the most significant changes that estate planning professionals see causing major shifts in estate planning strategies is the doubled exemption for married couples. Just twenty years ago, the exemption was merely $600,000 per couple, but that limit has been rising steadily over the last twenty years. Until the passage of the most recent laws, couples could exempt up to $11 million between them, and that is now doubled to a staggering $22 million per couple. For most estates, this is more than enough of an exemption.

Funding your living trust after you pass away

For those building an estate plan, the sheer number of options available can seem overwhelming. Estate planning is a very complex field, with numerous financial products and tools to consider.

Many individuals prefer to use living trusts for their flexibility and considerable protections. However, it is not always simple to know when exactly to fund a living trust.

Preparing for your role as estate executor

When the phone call comes of the passing of your loved one, you may not have much time to grieve before having to get right to work fulfilling your duties as an estate executor. You may be one of the many for whom handling the final requests of a loved one is a unique and intimidating experience. In fact, you may have the overwhelming feeling of being completely out of your comfort zone.

There may be many reasons why your loved one chose you, including the fact that you are organized and methodical, two qualities that are essential for an estate executor. Perhaps you have experience with the law or have undertaken this responsibility for others in the past. However, more than likely, you were chosen not for any special gifts you possess, but rather because you are the eldest in the family, because of your gender or for some arbitrary reason that really won't help you administer the estate effectively.

Guardianship and dementia

As soon as you notice the first indications of dementia in a loved one, it is wise to make sure that you make all the necessary arrangements to ensure that his or her end-of-life wishes are understood. It is also crucial to consider whether or not this person needs a legal guardian to act on his or her behalf and defend his or her best interests.

The reality of living with dementia is that it may take many years for a person who suffers from it to pass away. In the meantime, he or she deserves to remain safe and secure, and not fall prey to ugly manipulations by unscrupulous individuals. Dementia affects each person differently, but facing dementia without a guardian to protect the sufferer's rights and best interest is a truly frightening prospect.

Using a durable financial power of attorney

When considering how to protect your estate and establish your end-of-life wishes, it is very likely that you will assign a durable financial power of attorney to a representative. Such an appointment authorizes a person you choose to access your finances and take whatever actions are necessary to achieve your financial goals and keep up with your financial obligations.

This appointment, however, comes with a number of risks. One needs only to think of the scores of rock stars and actors whose personal fortunes dwindled quickly because someone with financial access decided to abuse his or her position. When you consider who to authorize with financial power of attorney, be sure to communicate your expectations and lay out consequences for unacceptable behavior.

Should I consider a joint will?

Joint wills are still possible to create, but they are mostly an artifact of an earlier era of estate planning, before more effective asset protection tools rose to prominence. For most couples or individuals considering a joint will, it is wiser to consider other options that grant similar benefits with fewer archaic restrictions.

When joint wills were used more commonly, married couples often created them to make it simpler and more streamlined to transfer property between spouses when one passed away. Now, estate planning professionals often accomplish this goal using trusts, which may make it easier to protect and transfer assets to beneficiaries, depending on the nature of the assets and other factors.

How do no-contest clauses protect a will?

There are many ways to write protections of your rights and preferences into your will, depending on your needs and the difficulties you anticipate those who survive you may face. In some cases, it is likely that one or more parties may challenge a will and greatly complicate the execution of your wishes. In these instances and others, it is wise to consider using "no-contest" clauses in your will as an extra form of protection for your wishes.

No-contest clauses set up greater risk of loss to those who might challenge the terms set forth in a will. Will challenges are far more common than you might expect, and even a frivolous challenge can delay the full execution of your will and result in unnecessary legal fees that drain an estate's resources.

Who would you trust to handle your finances?

No one can predict when an illness or injury may make it impossible to make decisions for or take care of yourself. If this happens to you, someone will need to be available to take care of your finances while you can't.

If you fail to plan for this eventuality during the estate-planning process, your family members could spend a significant amount of time and money in court obtaining the right to take care of your business during your incapacitation. Unless, that is, you go ahead and create a durable power of attorney.

What if my will conflicts with the law?

When a person passes away and leaves a will as part of his or her estate plan, the will may leave the administrators of the estate plan or executor of the will any number of instructions on how to execute that person's wishes. However, wills are not "magical" documents that allow those who create them to skirt the law. Rather, when a will conflicts with the law, the law takes precedence.

There are number of common conflicts that arise in wills created by individuals unclear on the limitations of will's authority. These may include

  • disinheriting a dependent child
  • disinheriting a dependent spouse
  • disinheriting an nonconsenting spouse
  • instructions to commit some specifically illegal act