What Kind of Estate Planning Would Senator Kennedy Have?

The recent death of Senator Edward Kennedy sparked interest on my part as to what kind of estate planning he may have had in place.  After all, my career is devoted to estate planning.  Although I have no personal knowledge of Senator Kennedy’s legal affairs, here is what I would expect of a man of his wealth to have in place upon his death:

  1. A Will.  The most basic of estate planning documents.  He undoubtedly had more sophisticated planning and documents in place, but I bet he still had a Will that covered all of the assets in his name alone at the time of his death.  Perhaps there were none, especially if he planned well in advance, but because there can be assets he couldn’t anticipate in advance (an unknown inheritance; a settlement of a lawsuit, etc.), he undoubtedly had a Will.
  2. Multiple trusts, but at least one that provided for his Wife and children.  This trust was probably tax-planned.  This means that he did all that he could to avoid probate and take advantage of the marital deduction to shelter against estate taxes, and keep his affairs private (trusts aren’t typically part of the Public Record). 
  3. A charitable trust.  I would bet that Senator Kennedy also had some type of charitable trust or foundation in place.  This afforded him tax shelters and fulfilled his charitable intentions. 
  4. A Living Will.  Obviously, someone who is facing a terminal illness may want to define the terms of their passing—feeding tubes vs no feeding tubes, artificial resuscitation, how much medication, etc.
  5. Durable Power of Attorney.  Senator Kennedy must have had a Durable Power of Attorney in place that allowed someone else to sign his name and handle his affairs during any period of incapacity.
  6. Other documents.  He might very well have had other documents as well, such as a Family Limited Partnership, a Designation of Health Care Surrogate, a Designation Naming Preneed Guardian. 

I did not know Senator Kennedy, and certainly am not privy to his estate planning, but the above documents are some that I would expect to be part of the estate planning for a man of his wealth.


Posted by: editor September 3, 2009

What if Michael Jackson died a resident of the State of Florida?

With Michael Jackson’s recent death, there has been much media speculation about his Will, who he named as guardian of his children, and the fact that his father was left out of the Will.   Michael Jackson died a resident of the State of California, but what if he had died a resident of the State of Florida?  How would his Will be interpreted in Florida?  (If you haven’t seen a copy of his Will, you can find it on the Internet.  Here is a link to a site that has it as of this writing:  http://www.docstoc.com/docs/8016703/Michael-Jacksons-Will.)

The first thing that I notice about his Will is that it is a “pour-over” Will, meaning that he leaves all his assets (referring to all assets controlled by the Will, which are only those assets in his name alone at the time of his death, without beneficiary designation or joint owner who had rights of survivorship), to a revocable living trust that he established during his lifetime.  The trust is private, meaning that it should never have to appear in public record (unlike the Will which is a public record), and undoubtedly contains all of the true dispositive provisions for his assets.  A living trust is the gold standard of estate planning for an individual who wants to avoid probate (and who doesn’t?), and wants to keep the estate private.  Both the pour-over Will and the revocable living trust are estate planning instruments routinely used in the State of Florida.

Second, I notice that the Will appears to be properly signed by Jackson, and three witnesses signed as well.  Now I know that if he had died in Florida, I could have this Will admitted to probate, although I will have to jump through some extra hoops to do so, and here’s why:  Florida law requires a minimum of two witnesses, so three witnesses are fine.  However, there doesn’t appear to be a Self-Proving Affidavit attached–a mechanism used in Florida and other states whereby the Testator (person signing the Will) and the witnesses swear to the notary that all signed together and witnessed each other’s signatures.  Without a Self-Proving Affidavit, I will have to locate at least one of the witnesses to Mr. Jackson’s Will, and have him or her sign an Oath of Will, which I would then submit to the probate Court in lieu of the Self-Proving Affidavit.

Third, I notice that he has a provision intentionally omitting his former spouse, and he alludes to intentionally omitting other unnamed heirs.  Typically, such a provision for an individual like Mr. Jackson is unnecessary.  His former wife would not be a recognized heir-at-law under the laws of the State of Florida.  In fact, under the laws of the State of Florida, and because he was a single man, only his children are his heirs-at-law (those entitled to inherit by Statutory law).  So, intentionally omitting other individuals is superfluous–they wouldn’t be entitled to inherit from him anyway.  When would this answer be different?  If his children had predeceased him; if he were married at the time of his death and had not included his spouse; if he had children born after the signing of the Will.  All of those situations would lead to a different answer.

Fourth, his Will appoints his mother as Guardian of his children, and Diana Ross as alternate guardian.  I see this situation often–a divorced parent wants to appoint someone other than their children’s other biological parent as guardian.  Under Florida law, a biological parent is considered the child’s natural guardian, regardless of what the Will says.  I cannot speak for California law, but if I had this situation and I represented the named grandmother, I would not be hopeful that she would be appointed Guardian of the two children whose mother is still legally recognized as their mother, even if the mother  wasn’t involved in their day to day lives.  Jackson’s youngest child, who supposedly was born to a paid surrogate, is different if he doesn’t have a legally recognized mother.  In his case, I expect his grandmother to be appointed as his guardian.  And what are the chances of Diana Ross serving as the children’s guardian?  Highly unlikely if this happened in Florida Courts.  Florida law has a hierchy of those individuals it will consider for appointment as Guardian, and an unrelated third party who doesn’t know the children well and perhaps has not been involved in their lives, is not likely to be appointed.

The last thing I notice is that his Will otherwise appears to contain “boilerplate” (standard) Will provisions, similar to a Florida Will.

So, if Michael Jackson died in Florida, his Will would be admitted to probate; his mother may or may not be the appointed guardian of his children; and his former spouse is not an heir-at-law and thus did not need to be mentioned in his Will.

My overall impression is that Michael Jackson took care of his estate planning by establishing a Trust to avoid probate and provide privacy; that he acted as a responsible parent and named Guardians for his minor children (even if they aren’t ultimately appointed by the Court); and that the inclusion of the paragraph disinheriting his ex-wife and other unnamed heirs was probably done to appease Jackson if he was in fear of his Will being challenged.

Michael Jackson was a wealthy man, and obviously had legal counsel encouraging him to take care of his estate planning.  But you don’t have to be wealthy to benefit from the same type of estate planning as Michael Jackson–at a minimum each individual should have a Will, and many individuals benefit from a trust as well.  Contact the attorney of your choice to take care of these basic planning matters.


Posted by: editor July 4, 2009

Do-It-Yourself Wills

Here is a common question we often get:  “Why can’t I prepare my own Will?”  Well, you can.  There is certainly no law that says you cannot.  And there are endless numbers of websites and reference books to tell you how.  However, I have had a first-hand opportunity to review a number of such documents during my 18 years of practice, and rarely do I see a “do-it-yourself” Will that was properly prepared and signed.  If it’s important to you that your wishes are carried out by the terms of your Will, it’s worth it to pay an attorney to prepare the Will for you.  Too often the fatal error is not discovered until it’s too late to correct, causing heartache and expense to those who would otherwise inherit had the Will been properly prepared.

Some of the most common mistakes I see:

  • Will is not properly prepared
  • Will is not properly witnessed
  • Will is notarized but not witnessed
  • Will uses conflicting survivorship language
  • Will fails to dispose of all property (ex:  disposes of personal property but not residuary)
  • Will contains provisions that are not necessary (and maybe not valid) in the State of Florida
  • Will names unqualified persons as Personal Representative (executor)

While some of these errors will totally invalidate the self-prepared Will, others can be costly to remedy, tie up the estate in probate court, and perhaps invalidate the written provisions entirely.

I repeat:  If it’s important to you that the terms of your Will are followed, pay a licensed attorney (not a paralegal or paraprofessional) to prepare one for you.  There is an attorney for every budget.  Price should not be a deterrent to having a properly prepared, validly executed Will.


Posted by: editor June 24, 2009