Our Take

Welcome to "Our Take," a special section of our blog dedicated to our opinions on interesting news articles we come across. "Our Take" topics will typically refer in some way to one of the main services we offer:

Headline - Write It Anywhere; Just Write It! (CNN)

Our Take (written by David Callahan on 1/24/12): This article from CNN demonstrates one of the most unknown nuances of estate planning.  In Tennessee a person is able to create a valid and enforceable will known as a holographic will.  A holographic will, quite simply, is a handwritten will.  In Tennessee, for a holographic will to be enforceable all material provisions must be in the handwriting of the testator (the person creating the will) and it must be signed.  That is as simple as it gets.  Now, the testator has to demonstrate some testamentary intent in this writing in order to make it a will.

So, in the article above it is clear that everything written on his armrest was in fact in the handwriting of Mr. Porter.  Further, he signed the armrest.  Therefore he could have created a valid holographic will except for the fact that it doesn’t appear that he had demonstrated any testamentary intent.  This could have been something as simple as saying “I want my children to share my stuff” or “I want my son to handle all matters if I pass away”.  Language of this sort demonstrates intent to have this writing stand as an expression of wishes after death.  And yes, they would have been required to remove the armrest and bring the armrest to court in order to have it admitted to probate as a valid holographic will.

Headline - Everyone Needs Estate Planning (Green Bay Post-Gazette)

Our Take (written by David Callahan on 1/3/12): I came across this article today and it got me thinking about the way we use terms in our practice.  The term “Estate Plan” has really been usurped by the wealthy and those advisers who are hoping to represent that demographic.  This is truly unfortunate because it often does lead to the masses believing that they don’t have an “estate” and that there is no need to do any planning.

Well, the truth is far different from this perception.  The planning that is done for the highly affluent client does not differ significantly from the planning done for the average client.  The planning for the highly affluent client usually involves some additional considerations, such as avoidance or minimization of estate and inheritance taxation.  However, when boiled down to the simplest level they are attempting to get as much of their “estate” to their desired beneficiaries as possible.  They usually want to take care of their family.

For the average client the plan will usually have the same core theme – getting my “estate” to my family.  The plans for the average client may be a bit simpler from a drafting standpoint, but at the end of the day the goal of passing my “estate” on will be accomplished.  If you look back to our previous FAQ blog post you will see a discussion of what happens when clients pass away without a will.  The laws of intestate succession will ensure that your property does not pass to the state but it may not accomplish the goals you have in mind.  So, I wholeheartedly agree with the sentiments expressed in this article.  I think we should all refocus the way we view “estate planning” and recognize that we should all take the steps necessary to guarantee that our wishes are carried out for our “estate.”

Headline - Kevorkian Estate Litigation in Michigan Court Disputes Ownership of Art (einnews.com)

Our Take (written by David Callahan on 1/2/12): This article discusses the current litigation which is pending between the Estate of Jack Kevorkian and a Boston museum regarding a variety of pieces of artwork.  The key question is whether these paintings were lent by the late doctor or whether they were donated.  This is an interesting question but it is one which can’t be resolved by this article as it is highly fact driven.

The most interesting part of this article in my opinion is the issue of who is serving as the personal representative for the estate.  The article states that the long-term attorney for Dr. Kevorkian is serving as the personal representative.  This sounds like a favorable position for the attorney to be in because it provides a deep and intimate familiarity with the issues present in this dispute.  The attorney that was involved with the late Doctor’s planning is now the party in interest pursuing the enforcement of the rights of the estate.   It is the position of our firm to never serve in the position of personal representative because it is often not cost effective to have an attorney serving in this role charging their normal hourly rate.  I would say this case is the rare exception where having this level of familiarity in a purely legal issue may reap healthy rewards for the estate.

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