Dear Mr. Miller:
My Dad is getting on in years and does not have a Will or a Trust. And he’s not exactly penniless, either. He’s worth about $1.5 million with his house, bank account, and stocks and bonds. If the fear of needing a Probate when he dies weren’t enough complication, he wants to reward me for taking care of him for the last 10 years. So he wants me to receive the house, the bank account, and then split the small amount of stocks and bonds with my brother.
I called two attorney’s offices, explained the problem, and asked to set up an appointment for us and they both told me Dad had to call. He won’t call; he doesn’t really care! Why won’t they set an appointment? I’m willing to pay!
We attorneys can be a strange breed of animal sometimes. Usually, that’s because of the rules under which we are forced to operate and the fact that we are looking down the road as to the ramifications of today’s actions.
Probate: Let me count the ways as to where you are going wrong. First some background for our readers: without a Will or a Trust the assets will probably go through Probate when your Dad dies. I know most people think this is right up there with the worst problem in the world. It isn’t really that bad, but it is better to avoid it.
Challenging a Will or Trust: You have said that you are going to get the lion’s share of the estate. How will your brother feel about that? If he is going to be upset, he may think about challenging the Will/Trust. And the fact that you will be the one who set up Dad’s estate planning conference with the attorney, probably selected the attorney (whether from the Internet or referrals), drove Dad to the appointment, sat in on the appointment, and probably did a lot of the talking during the meeting would be prime evidence for his court challenge. In other words, all of these factors would make it look like you were “controlling” your Dad and the idea to have you inherit so much more than your brother was your idea and not his. If the court found that to be true, the Will or Trust would probably be struck down on the grounds of fraud in which case you and your brother would share equally (assuming there are no other family members such as spouse or other siblings).
Most attorneys, myself included, run into this problem over and over. Often times I don’t know the situation in such detail until the two of you are in my office. If everyone is getting an equal amount, then it’s not a big problem. I just kick the child out for a few minutes so I can speak with the parent alone and make sure that the parent is on board with everything and not being “controlled.” But if the inheritance is going to be uneven, I have sometimes had to refuse to take the case.
Avoiding the Appearance of Fraud: So how should you avoid the fraud problem? Have your Dad call and make the appointment. He probably can’t drive himself so have someone else drive him or use Uber. Definitely don’t sit in on the meeting and probably don’t even show up at the attorney’s office.
Motivating Your Dad: Of course, the problem here, as you have stated, is that your Dad won’t call. So if you call for him, it really is your deal, not his. Why not sit down with him and talk it through? Get some of the articles from my website (this one would be a good start) to help you discuss why a Will or Trust is a good idea and what problems and expenses having one will avoid. Here’s another one; take a look toward the bottom as to trusts and incompetency.
I’m sure you are just looking out for your Dad, but “looks” can be deceiving. The more involved you are in the process the more challengeable it becomes.