Where There’s a Will. . .
oseph inherited his Technicolor coat--and was sold into slavery over it by his jealous siblings. Does this suggest anything about how ancient inheritance troubles are?
Still, questions arise in the ‘90s that once wouldn’t have come up: How do I leave an equal share to my children of a first marriage and still take care of my fourth and present wife? That sperm donation I made--I have a sizable estate; are other children going to come forward later?
In the field of wills, “The technological abilities and customs of society are swiftly outstripping the laws for the rather old staid process,” says John McCabe, legal director for the National Conference of Commissioners on Uniform State Laws, a legal body that offers drafts of new types of legislation to states. But one fact remains stable. Financial estate planners and tax lawyers essentially all say the same thing: Do make a will. It’s something 70% of all Americans die without doing, says Paula Monopoli, professor of law at Southwestern University School of Law.
“It’s interesting to see the famous people who’ve shirked their duties,” Monopoli says. “Pablo Picasso, Abraham Lincoln, the Aga Khan. . . . Contrary to popular belief it’s not just poor people who die will-less. Many wealthy people can’t face the simple facts either.”
The simple facts: You’re going to die. Your property will go to someone after you die. If you don’t have a will, your property will be disbursed according to state laws, which historically have followed familial bloodlines.
But today’s headlines raise the question of what constitutes a family. There are patchwork divorce families, gay couples with and without children, mothers who have been artificially inseminated. Add to this the fact that people are living 15 to 20 years longer than in the 1950s, and the transfer of simple wealth is labyrinthian.
Will-drafting problems are indeed getting more complex, says Jeffrey Condon, partner of the Santa Monica firm Condon & Condon and co-author of the book “Beyond the Grave: The Right Way and the Wrong Way of Leaving Money to Your Children (and Others)” (Harper Business, 1995). For example, protecting what you leave your children from their own potential problems--divorce, bankruptcy--is a contemporary concern.
Here are suggestions from experts on other problems affecting many ‘90s families. You should have a lawyer to advise on what is right for your circumstances.
* If you want your kids from a previous marriage to inherit your wealth, you must provide for it in your will or through estate planning. It will not happen automatically. Legally, your current spouse will inherit your property unless you specify to the contrary in your will. “Your second or third wife is under no legal obligation to do ‘the right thing’ and give your assets to your children,” says Dennis Clifford, author of “Plan Your Estate” (Nolo Press, 1994).
* If you jointly own property with a current spouse that you want to leave to your children from a previous marriage, you can leave your half directly to your children by severing joint tenancy, a real estate document filed with the county recorder’s office. A downside could be that your children and surviving spouse become partners in this property.
* Many trusts can provide income for your surviving spouse without leaving him or her the property if you wish to leave it to children of a previous marriage. A QTIP--qualified terminable interest property trust--will hold your wealth in trust while allowing your spouse to use any income it generates. Your children inherit at the stepparent’s death.
* An alternative view is that you should cut the money ties between your current partner and your children and that it is best to leave a lump sum to your spouse and the rest to your children (or vice versa). People are living longer, so in a trust situation your children might be elderly when the stepparent dies, leaving the house or property. One lawyer put it this way: If you want to torture your current spouse, let everything be held in trust while your children wait until he or she dies.
* Treat your children equally. Today’s wide economic gap increasingly shows up in young adults’ professions and income. People may think if child No. 1 is a millionaire and child No. 2 struggles to pay monthly bills, child No. 2 should inherit more. Estate planners say no. “You might not be keeping score, but your children will inevitably see things differently,” says Gerald Condon, partner in Condon & Condon. He suggests alternatives if you want your “needier” children to have more, such as making occasional gifts of cash or property. (They may receive up to $10,000 annually from each parent tax free.)
* If you have donated sperm or ova, you might want to add a clause to your will: “I choose not to leave anything to any children born after my death through use of my sperm or eggs.” Sounds nutty, but it works for today. The law has not caught up to technology, so it can’t hurt, Jeffrey Condon says. In the case of sperm used by a married couple to artificially inseminate, the biological father’s interest is void.
* Write a new will after you divorce. Chances are when you were married, you named your spouse as beneficiary. Until you remarry or change your will, your named spouse will be entitled to inherit your estate according to applicable law.
* Be sure to write a will if you live with a partner outside marriage and want that person to inherit your property. The deceased partner’s family can use intestacy laws to make life horrendous for the surviving partner. Remember, even if you have lived 35 years with someone, yet are not married, if you die without a will, your family will inherit your estate.
* Tell everyone concerned about your plans. That is the cardinal rule of estate planning hardly anyone ever follows, say lawyers and estate planners, and it is crucial today when so many patchwork families are bound together in complex relationships. Whatever you plan to do with your estate should be explained to your children, spouse and anyone else involved while you are still alive.
