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Three reasons to have your NY estate lawyer draft your will: Estate of Aretha Franklin

17
Jun

By Jason Stern

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Three reasons to have your NY estate lawyer draft your will: Estate of Aretha Franklin

We all know about the two most famous constants in our society, death and taxes.  While there is still very little we can do to completely avoid one of these eventualities, when it comes to the NY estate tax a NY wills lawyer is your best bet to minimize if not avoid estate tax liability altogether.  The concept of taxing the populous for the good of society dates back 8,000 years to 6,000 B.C.  In fact our very own nation was born out the blood spilled by colonists concerning their grievance with England’s taxation without representation.  

Fortunately, as a NY estate lawyer I can tell you that due to recent increases in the amounts of estate assets exempt from the NY estate tax, $5,740,000.00 per individual, much fewer families are now burdened with this levy.  However, for those high net wealth individuals with estates in excess of the NYS exemption amount, a NY attorney drafted will is all that could be standing between your NY estate and its exposure to the 16% NY estate tax.    By utilizing different NY estate planning strategies in your NY will, any and all NY estate tax liability can be circumvented if drafted correctly.  While sparing your heirs the burden of losing 16% of your NY estate in estate taxes sounds great, this is not even one of the top three reasons to have your NY estate lawyer draft your will.   

As most New Yorkers’ estates will fall well below the exemption levels of the NY estate tax, this is not the most important benefit most will realize from having a NY attorney drafted will.  The following are three very important reasons to have an experienced NY wills lawyer draft your will properly.  

First, just like we should not attempt to change our own brake rotors on our vehicles nor should we attempt to draft our own NY wills for probate.  For instance pursuant to EPTL 3-2.1 the testator, person signing their will, and subscribing witnesses must all sign the document in a very specific manner with accompanying documentation to illustrate to the court that each of the formalities and requirements were performed.  Otherwise, your NY will can easily be denied probate and your entire NY estate distributed in accordance with the laws of intestacy.  

When the time comes it is vital to prove that each party signed the document in the correct place.  In the Matter of Holmes, (Queens Sur. Crt. 2008), the 77 year old testator did his own will leaving his home to his step daughter.  However the NY will was denied probate because Mr. Holmes failed to affix his name in the correct place.  As a result, the family home was sold and the testator’s step-daughter was evicted from the premises where she resided with her children.

The second and maybe most important reason to have a NY estate lawyer draft your NY will is the attorney presumption of validity or regularity.  What this says is that any NY will drafted and supervised by a NY lawyer is afforded the presumption of validity.  In the absence of this presumption of validity which does not accompany non-attorney drafted NY wills, it is incumbent on the party offering the NY will for probate to prove due execution.  Due execution in NY estate matters means that the will was shown to be properly executed by a preponderance of the evidence and that the testator had capacity.  In other words, should the NY will ever be examined or contested and it is found that the testator failed to sign the instrument in accordance with the formalities required or that the witnesses cannot be located or have died, or testify that they never saw the testator sign the document, you are going to have a very difficult time probating that NY will.  Whereas, NY wills drafted by NY estate lawyers receive the benefit of the doubt in that there are inferences that the NY attorney drafted document was properly and duly executed with all of the required formalities and that the testator possessed mental capacity at the time of its execution Matter of Halpern, 71 A.D. (NY 1stDept. 2010).  Simply stated, wills drafted and supervised by NY estate lawyers are presumed valid unless shown to be otherwise.  

The third reason to have a NY estate lawyer draft your NY will is insurance against a missing document.   Pursuant to NY estate law SCPA §1407 it is stated that if you misplace your NY will there is a strong legal presumption that you in fact destroyed the document and intended to revoke its contents.  People are peculiar and change their minds all the time.  So if your will cannot be found after your death and it remained in your possession, your will is ocnsidered null and void and copy of it will not be probated in NY.  Therefore, if you do not have your NY estate lawyer maintain custody of the original copy of your NY will, your copies become useless in the event the original is lost, as only your original can be admitted to probate. However, if you left your original NY will with your NY estate lawyer and your lawyer either retires, moves away or even misplaces it, your conformed copy of your NY will can then be admitted to probate in its place. 

Estate of Aretha Franklin

Aretha Franklin passed away on August 16, 2018 after succumbing to pancreatic cancer at the age of 76.   Aretha, is survived by her four children Clarence, Edward, Ted and Kecalf, who stand to inherit the balance of her $80 million dollar estate.  Initially it appeared Aretha Franklin did not leave behind any will or ostensible estate planning.  As such, while Aretha’s home state of Michigan, has no state estate tax of their own her intestate estate (when there is no will) would be subject to 40% federal estate tax liability absent any preplanning.  Therefore, of Aretha Franklin’s $80-million-dollar fortune, approximately $39,000,000.00 stands to be lost to federal estate taxes in addition to interest, penalties and administration fee’s.  

However in May of 2019, several handwritten wills of Aretha’s were found among Aretha’s belongings locked away in her file cabinet and under her sofa.  None of Aretha’s wills maintained any level of estate planning required to circumvent her estate’s incredible estate tax burden or any of the catastrophic expenses associated with failing to properly plan her estate.  Nor does it appear that any of Aretha’s wills were properly signed, witnessed or maintained the requisite language to effectuate the transfer of her assets upon her death.  

While at first the discovery of these may have granted Aretha’s heirs a glimmer of home in the administration of her estate, that hope is quickly fading.  The Surrogate’s Court has scheduled a hearing to determine the validity and legal significance of these purported wills.  Absent witness signatures and conforming language it is unlikely that any of these wills will be admitted to probate.  Even if these wills were probatable, which they are not as they were never even witnessed, these purported documents do not make any attempt to preplan Aretha’s $80 million estate or minimize her estate tax liability in any way.  As such, the determination of these instrument’s validity should be merely academic to the heirs of Aretha Franklin at this point.  

While not all self help wills fail why take the chance. For a little bit more money or in some cases no more money than it costs to download a will off the internet you could have an attorney drafted instrument with all the advantages that accompany it. In Aretha’s case her handwritten, unwitnessed wills fall into the category of holographic wills and almost always fail.

If you think a family member or friend that may have an issue with a NY will it never hurts to ask the opinion of an experienced NY estate lawyer.  Feel free to call the NY wills and estate lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444.   Our Queens estate lawyers have more than 60 years of combined NY estate law experience drafting and probating the wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Orange, Dutchess as well as in the State of New Jersey.

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