HomeLiving TrustsA WILL AND A LIVING TRUST COLLIDE

An experienced living trust attorney is the best at putting together

    living trust

estate plans. The best bet for putting legal documents in place that will work harmoniously together to accomplish your wishes is an experienced living trust attorney. The case of In re Estate of Horner, 322 P.3d 1065, 2014 OK CIV APP 29 [http://www.oscn.net] demonstrate what can and usually does go wrong when this is not done. Sometimes, as in this case, the estate documents amount to a hodgepodge.

The father wanted his son $200,000 and a residence he purchased for his son in Muskogee, Oklahoma. Unfortunately that is not what happened. The father executed his will in 2004. He owned at that time a home in Broken Arrow, and all of the stock in a real estate development corporation. The corporation owned two commercial parcels in Muskogee.

The father’s will directed that all his real property be sold at this death, and for the proceeds to be divided among certain heirs. Then his will did something strange [strange to an

    experienced will and probate attorney

probably, but probably logical to a layperson], it directed what was to be done with the two properties owned in his corporation [only a really ignorant attorney would not know you can’t do that this way]. His son was to receive a $100,000 bequest from each property. [This would be a major red flag for an experienced will and probate attorney.]

A few months after his will was signed, the father wrote a letter to his daughter [can’t blame the lawyer for this one]. It stated: “When the buildings [in Muskogee owned by his corporation] are sold, [his son] is to get $100,000 [from each]….After the house is paid off, [my son] can live in it. If he ever decides she doesn’t want to live in it, sell it.” [It probably never occurred to the father that he need to get lawyered up and make this legal]. This letter was also admitted into probate as a handwritten holographic codicil to the father’s will. [Oklahoma recognizes holographic wills and codicils.] A holographic will or codicil is a document entirely in the handwriting of the decedent, that is signed and dated.

The father, 5 years later, put in place a living trust. The father conveyed all of his ownership of his corporation to his living trust. That way his corporation would not go through probate. One concern with what was done is that it reminds me of legal work done by either someone not adequately experienced to know what he was doing, or it was some form the father obtained and did himself. There are all kinds of living trusts out there. There are living trust forms one can get off the internet. There are living trust forms one can get at an office supply store. There are living trusts one can get from the attorney who is the cheapest. [Think about it some. Do you really want the attorney who is the lowest priced on the living trust to do yours?] In this area of the law, a form off the internet or from the local store, or the attorney with the lowest cheapest price, is not worth it. In fact it always turns out to cost the most. You definitely get what you pay for. This is proven over and over again by the disastrous results obtained with these type of documents.

An experienced living trust lawyer, like Brent D. Coldiron, would never have drafted a living trust without also putting in place with it a new will [pour over will] and deeds being recorded for all real property and minerals individually owned. [Brent D. Coldiron would also have made the client understand that one cannot dictate what is to happen to property owned in a living trust through one’s will.] The pour over will would have stated that it superseded all the old wills, and everything owned by the father at his death was to go to the living trust. Brent D. Coldiron would then have the living trust take into account the father’s testamentary wishes, including $200,000 and the Muskogee home he wanted his son to have. The father’s wishes in the 2004 will and codicil would have been built into the living trust.

But in this sad story, we have a hodgepodge of documents. A 2004 will. Then a holographic codicil by letter. Then a living trust. The worked against each other. When the father died his will and holographic codicil were admitted to probate. It turned out that the only real property individually owned by the father at his death was his Broken Arrow residence, not the Muskogee home. And the Broken Arrow residence was subject to a mortgage. [An experienced living trust lawyer would have made sure all of the father’s real estate was deeded into the living trust and not allowed to be individually owned at death.] This was big trouble for the son. He tried to argue to the Court that the will and codicil should be followed, and his father intended him to have the $200,000 and the Muskogee residence. He even called an employee of the abstract company who was allowed to testify [hearsay evidence] about what the father stated to him, that he was buying the Muskogee home for his son.

The son’s problems were further complicated because the living trust conflicted with the former will and codicil. The

    living trust

did not contain the former will and codicil provisions for the son to inherit the $200,000 and the Muskogee home. The Court noted that while his will and codicil required the son receive $200,000 from the two Muskogee commercial properties, those properties were owned by the father’s living trust, and not individually. The Court held that the will and codicil provisions could not be enforced because the living trust did not contain the same provisions. To rub salt into the wound the Court stated the legal maxim, “Probate proceedings are of equitable cognizance.” [ As the son is desperately trying to get the Court to look beyond the technicality of the legal rule and look to the spirit of what his father intended.]

The Court held that the Muskogee home would not go to the son. The Court stated that the meaning of the terms “the house” in the will and codicil could not refer to the Muskogee residence purchased after the will was signed. The Court said the “hearsay testimony” of the abstract company employee [that the father told him he was buying the Muskogee home for his son] was not enough for the son to prevail. This is especially sad considering the son had been residing in the Muskogee home with the father’s consent, and he had used his own money to pay on the mortgage note while living there.

What is to be learned from this sad story? That an estate plan must be coordinated. It must flow together harmoniously. Who do you think can do that for you? Do you think a will or trust form you might get off the internet, or from the local office supply store is going to work? I wonder what was spent on the litigation over all this. I know one thing. The son lost out on $200,000 that the father wanted him to have. And he lost out on the Muskogee home. All that went to the heirs specified in the living trust, which failed to mention what was said in the earlier will and codicil. What a tragedy!

The legal rules applying to wills,

    living trusts

, and probates are many and complicated. If you end up on the wrong side of one of them, regardless of the equitable fluff espoused by Courts, the rules are applied with harsh results. Ignorance, inexperience and lack of knowhow is going to be a legal disaster. It was in the above case. Don’t trust your estate to chance. Don’t put your faith in a hodgepodge of documents. If you want certainty. If you want an expert result, use an experienced living trust, will and probate attorney, Brent D. Coldiron. His fees are reasonable. He has over 39 years experience. Call Brent at (405) 478-5655 or 737-2244. His website is http://www.coldironlaw.com.


Comments

A WILL AND A LIVING TRUST COLLIDE — No Comments

Leave a Reply

Your email address will not be published. Required fields are marked *