In New York, the late socialite Brook Astor’s eighty-five year old son, and his attorney, are being tried on criminal charges of looting her estate.
Many attorneys might tell you that “if only they had a living trust, their affairs could have been handled outside of the courtroom.” If only that were true.
It is true that if you have a living trust, AND the trust owns your non-retirement assets (as many clients and advisors have heard me say, a trust which does not own property is not worth the paper on which it is written), then during your incapacity, your designated successors can manage your affairs without going to court.
However, when your family is fighting, that is going to happen in court whether you have a trust, a will, or no estate planning documents at all.
In Falk’s case, if one believes the reports in the press, Falk’s wife would not let his daughter visit him. That’s a guaranteed ticket to court, regardless of what type of estate planning documents you have. His wife might have had very good reasons, at least in her own mind, to keep his daughter away, and no doubt his condition is creating tremendous stress in his wife’s life. After all, caregivers often die before the ill person because of stress. However, everyone involved in the life of an incapacitated person must understand that everyone else in the life of the incapacitated person has their own perspective, and few – probably only those who cannot afford to do anything about it – will tolerate seeing their loved one isolated from them.
The Astor case in New York is more unusual. In my experience in Southern California, law enforcement and adult protective service agencies simply are not very good at investigating and/or charging family members for unduly influencing a parent to change his or her estate planning documents to favor that child. If a third party, such as a caregiver, is involved in looting an estate of cash, that is much more likely to be investigated and prosecuted. However, family members always can claim that they were simply doing what their parent requested of them, and many judges would believe that even if there had been ill will between a parent and child, those hard feelings are softened when the child cares for the parent when the parent is ill.
It will be interesting to see whether the Astor prosecution is successful. Even if it is not successful, it also is a cautionary tale for lawyers, who would never expect to be prosecuted for preparing estate planning documents. However, the next time a child comes into your office and asks you to prepare estate planning documents for his or her parent, whose prior documents were prepared by the parent’s attorney of nearly forty years, you might want to think at least twice before accepting the engagement.