Apr 10, 2011

Estate Challenges: Learning from Neil Rogers

South Florida radio personality Neil Rogers died Dec. 24 at the age of 68. You either loved him or hated him. He had no close family, but left behind legions of bereaved fans. And he left behind something else: Two contradictory Wills. The battle over his estate has landed in Broward Probate Court.

Rogers, who had been living in Canada, signed a Will there in October 2010 when he became ill, leaving everything to his companion Christian Hernandez. After suffering a stroke Rogers returned to Florida, where he signed a new Will in November, dividing his estate in thirds among Hernandez and two other longtime friends. The second Will declared the Canadian Will "null and void." Hernandez is contesting the second Will, claiming Rogers was too ill to know what he was doing at the time.

The rest of us can learn some valuable legal lessons from this mess.  
  • Ambiguity is not your friend when creating an estate plan. You should have an experienced Elder Law - Estate Planning Attorney draft your Will and any other estate planning documents. Your lawyer will be able to make your wishes crystal-clear.  
  • While a revocable trust does not automatically prevent estate challenges, the fact that it is a private document means that it need not be filed with the Probate Court, like a Will must be. This provides some extra protection.
  • Procrastination is often a contributing factor in estate challenges. Too many people wait to create an estate plan until they are ill, either physically and/or mentally, and this can open the door to claims that the creator did not have the capacity to know what he was doing!
  • If you are making substantial changes to your Will, and you believe that your competency may be challenged - as is occurring in Rogers' case - consider getting as much documentation of your competency as possible. You can see your doctor, psychiatrist or psychologist immediately after the signing, to secure his/her professional opinion that you are in fact competent to execute the document. In one instance, our law firm arranged to have a client see a psychiatrist prior to drafting her documents; the pschiatrist was also in our office at the time of the signing. Although it was a costly procedure for the client, it was done with the understanding that it would likely save significant funds after she passed away that would otherwise be lost to defending the estate against challengers, and would help defuse any potential lawsuit. 
  • It's not only the terms of the Will that can trigger estate challenges. It's also the way Probate or Trust Administration is handled after death. Personal Representatives and Trustees can greatly reduce the likelihood of challenges by making sure the Probate and Administration process are scrupulously executed. An experienced Elder Law - Estate Planning Attorney can also assist with this.

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