I had the misfortune of hearing a dreadful story over the weekend. It is a fine example of how emotions can run quite high in the weeks leading to death if no estate plan is established, and how the survivors are left to solve complex issues that will have an impact for generations.
A family tree is pictured on the right (click to enlarge in a new window) as a guide. Unless otherwise noted, all are Virginia residents. I have changed some of the facts to protect the innocent.
The focal point of this story is “X”, an 11-year old girl, and straight-A student. She is a very thoughtful and sensitive person who charms anyone who has met her, including the author.
Many years ago, X’s father A married B, and they had a child, Z. A and B later divorced, and Z went to live with B.
Later, A married C. C already had an older child of her own, Y, from a previous marriage. A and C later had X. C’s brother E, lives in Texas.
Y got married and had two kids. She later divorced and then married W, who had three children of his own (who all live with their mothers) and two prior marriages. Y and W had three more children.
Recent Tragedies and Decisions
Last year, X’s mother C was killed in a car accident. Within months, doctors discovered that A had pancreatic cancer. During A’s time in the hospital, X visited her father every day, but stayed with close family friends, headed by single mother, O.
As the inevitable approached, A finally drafted his will. He left his estate, ridden with debt, to his two children, X and Z. He also designated E as X’s guardian in hopes of giving X the benefits of his stable home. However, E and X had only met on two prior occasions.
Soon afterwards, X indicated that she wanted to live with O permanently after A died. A agreed, but never changed his will.
A short time later, Y offered to adopt X. X approved since she is close with Y. However, A indicated often that he did not want X to live with Y.
A died last month and X is now orphaned. A’s will named his ex-wife B as executor and E as X’s guardian. B does not want to serve. A’s next of kin is his sister D, who lives in Ohio, but she is also uninterested.
X still wants to live with Y, W and 5 of their children. E says he’ll only give up his guardianship rights if O takes custody of X. Z, 17, and A’s only other heir, also thinks O (and not Y) should take custody. O wants Y to have custody because Y is local, is blood, and has grown up significantly over the last year.
- Who will be executor if B and D decline?
- Who should be X’s guardian?
- E, who A originally named, but who lives in Texas?
- O, for whom A intended to change his will?
- Y, who is X’s first choice and local, but not desired by A?
- Should the court rule? Should the will govern, even though time ran out for A to change it? Has a mature 11-year-old with straight-As earned the right to decide?
It is imperative that you think about what would result in your own case often, and make changes as appropriate. As shown above, you never truly know what can happen.
- Estate Planning Changes and Children (hamilllawoffice.com)
- Last Minute Estate Planning Doesn’t Work! (wills.about.com)
- O’Quinn Estate is Harder to Manage than Executor Expected (lawprofessors.typepad.com)