Estate planners and probate lawyers are anxiously awaiting Congress’s next move with regard to the estate tax. As many folks know, there is no estate tax in 2010. Heirs to billion dollar fortunes are making out like bandits if their benefactor dies in 2010 – kind of weird thing to read, isn’t it? But it’s true. Famous New York Yankees owner and billionaire George Steinbrenner died this year, and there have been others. One thought that’s been bandied about is that Congress could make the new estate tax retroactive to 2010. If this doesn’t put a rush on a probate I don’t know what will. Here’s a good update on the estate tax, where it stands now, and where it could go. Keep your local estate planner’s number handy. You may need it soon.
Posts Tagged ‘Probate Litigation’
Estate Planning – For What?
Thursday, August 5th, 2010Prenuptial Agreements – An Important Estate Planning Tool
Thursday, July 8th, 2010One of the estate planner’s most important planning tools is a prenuptial agreement. Prenuptial agreements are especially important for those who are entering into second marriages with children from a first marriage, or where one of the parties has a substantial estate prior to the marriage. Prenuptial agreements are often used in second marriages for the purpose of ensuring that the estate is preserved for children and others. Statistics show that second marriages have a high rate of divorce, so the use of an effective prenuptial agreement lessens the risks involved in entering into another committed relationship. Prenuptial agreements are also a valuable tool for ensuring family businesses stay in the family.
Important Tips for an effective prenuptial agreement:
1. For reasons that should be obvious, don’t wait until the day before the wedding to discuss the prenuptial agreement.
2. Discuss the prenuptial agreement with each other openly.
3. Discuss all of your assets with each other, as full disclosure is necessary for a valid prenuptial agreement.
Many people do not get prenuptial agreements because they believe it only increases the likelihood the marriage will fail, however, this is a cynical view of marriage. After all, marriage shouldn’t be about assets. For most of us, marriage is about love and commitment. If the only tie that binds is the thought of splitting assets, that’s not a commitment. Oftentimes, a prenuptial agreement is the only truly responsible way to enter into marriage.
Revocation of Prior Wills
Wednesday, March 24th, 2010It’s not uncommon to execute more than one will in your lifetime. In fact, estate planners recommend you have your will and estate plan reviewed on a periodic basis in order to ensure your estate will be distributed effectively and in a way that makes sense. After all, circumstances change. When a new will is executed, prior wills are revoked. Even though this is true, it is good practice to destroy prior wills to avoid possible confusion later.
In the Matter of Woodfield, 968 So.2d 421 (Miss. 2007), the Mississippi Supreme Court considered whether the withdrawal of a probated will containing such a revocation clause revived an earlier will. In this case, the executor initially sought to probate a will created by the testator in 2001. When a contest arose, the executor withdrew the 2001 will and sought to probate a will that had been signed by the testator in 1973. Importantly, the 2001 will had a clause revoking all prior wills. The executor argued that the withdrawal of the 2001 will revived the 1973 will. The Mississippi Supreme Court said that if the 2001 will was properly attested and executed, the 1973 will was revoked upon execution of 2001 will. Additionally, the Court cited case law from as far back as 1855, which stated, “a will duly executed according to the statutes, though prevented from taking effect in consequence of some matter dehors the will, as the incapacity of the person to whom the disposition is made to take, is a revocation of a former will.” Crosby v. Alton Ochsnew Medical Foundation, 276 So.2d 661, 669 (Miss. 1973) quoting Vining v. Hall, 40 Miss. 83, 107 (1866). See also Hairston v. Hairston, 30 Miss. 276 (1855).