There are a few things about anticipating an inheritance everyone should know. There are a number of ways to obtain an “inheritance.” The common probate procedures are: intestate transfer, meaning the deceased person did not have a will; and testate transfer, meaning the person did have a will. Additionally, a revocable living trust, joint tenancy, pay on death accounts, or other beneficiary listings may entitle you to certain assets. With most of these forms of transfer, the death of the owner is required before any right to the property actually becomes yours.
In other words, nothing that you believe you will receive upon death of a loved one actually belongs to you until, of course, it does. This is important to recognize because you are not, actually entitled to the inheritance you expect at any point before the death. Wills may be changed, trusts may be amended or revoked, and beneficiary listings may be updated at any time and without your knowledge. In fact, I make a living making such changes; they are frequent and varied.
That said, often people believe they will be receiving something from the deceased person because they were told they would. Perhaps after years of being the go-to person for physician visit transportation and grocery shopping your ailing aunt promised you a share of her estate. Maybe, as an only child, you simply assumed you would be the only beneficiary. Whatever the situation, if you later find that you are not, in fact, the beneficiary, there are a number of potential claims you could make.
In the event that a will or trust was changed to make a lawyer or caretaker a beneficiary of the estate, or even an executor or trustee, you may be able to make a claim for undue influence. Lawyers and caretakers owe fiduciary duties to their clients, i.e., it is their job to put their clients’ interests first. Occasionally, opportunistic professionals will use their position in order to obtain an inheritance for themselves. It is possible that there is a subtle, slow progression such that the professional is unaware he (or she) is exerting his influence. The courts are aware that clients are generally in a uniquely vulnerable state when dealing with caretakers and lawyers and will assume undue influence is present under certain circumstances. A successful claim will result in the offending beneficiary being removed as executor, trustee or beneficiary.
Another common issue is that, when faced with one’s own mortality, people often engage in a flurry of estate planning. A person who has not even reviewed their trust in 20 years might suddenly amend it 20 times. Especially when such planning occurs shortly before death, there may be issues of mental capacity. A client does not have to be “all there” to create a will. The client does need a clear understanding of his relations, his property, and the concept and gravity of testamentary decisions. To create or amend a trust, a client requires somewhat more mental capacity. However, a client who no longer recognizes certain family members, or is manipulated into signing a document may not have had the mindset necessary to create their estate plan.
But, beware. No contest clauses are intended to prevent potential beneficiaries from circumventing the testator (i.e. will-maker) or settlor’s wishes. An unsuccessful challenge could cost you your entire share of the estate. Before attempting to challenge a will or trust, you should consult with a qualified attorney to determine whether the challenge will be worth the risk!
Estate Planning: The Price of Organization, Rewards, Gifts, and Wondrous Tax Things…
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