The controversy over Michael Jackson’s estate provides a strong example of the importance of having a clear, unambiguous will. His surviving siblings’ claim that Michael’s current will is a fake has led to a public airing of the Jackson family’s dirty laundry. Apparently, their mother Katherine Jackson is “furious” that her children are contesting the will in this public manner.
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Siblings — like the Jacksons — may object to unfavorable wills for many reasons. The gifts left may be too small or nonexistent. They may disapprove of the intended beneficiary. Even though it is the legal right of the testator — or will creator — to distribute the estate how he or she pleases, surviving relatives still often seek loopholes to invalidate all or part of a will they don’t approve of.
There are a few things you can do to prevent your family from defying the contents of your last will and testament. But the first and most important step is to have a will in place. Having a will is important because it allows you, rather than indignant relatives or the government, to make important decisions about your property. You may want to leave more to some survivors than others, or you may want to leave everything to charity.
If you die intestate, meaning without a will, all of your property would go to your legal heirs with the government deciding the appropriate distribution. Intestacy is the result when the state approximates the intentions of someone who has passed away without a will. The state makes the final decisions, and assumes that one’s closest relatives should inherit, even if these relationships are strained or remote.
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Because intestacy is essentially a fallback plan in the absence of a will, only legally recognized family members can inherit. This means no cohabitants, boyfriends or girlfriends, unrelated “cousins,” or best chums can inherit — even if they are the most beloved by the deceased. In many intestacy will cases, a person’s next of kin turns out to be quite distant (such as a fifth cousin twice removed) or even someone unknown to the deceased. But such persons will still inherit if she or he is the closest living relative.
Reliance on intestacy can have a substantial impact on black families, which have a wide variety of compositions and arrangements, both formal and informal. Despite this, most African-Americans are likely to die without a will: only one in three blacks has a formal estate plan.
Do not be part of the larger statistic. If we learn anything positive from the Michael Jackson estate family drama, it should be the importance of having a solid will in order to allow one’s assets to be distributed peacefully after one’s death.
You do not have to be rich as Michael Jackson was to have a will. A will can enable your estate to distribute small but meaningful bequests on your behalf, such as a $400 bank account, a shoe collection, art, or a car. Your desires for larger assets like houses and retirement savings, and most importantly your intent for the care of minor children, also require proper delineation within a will.
Even for a moderately-sized estate, having a legally ratified plan for these distributions in advance will prevent a lack of fighting among loved ones. We have all witnessed families clash over even the smallest of estates, for reasons that are sometimes sentimental. You can prevent what should be a time of family unity from devolving into war through a strong will.
Costs should not be prohibitive. Having a will does not have to be expensive, especially for a modest estate plan. Going to a lawyer can cost an average of $375. You can do your will online for as little as $50.
When you are ready to draw up your will, three things are important to remember, whether the will is handled by an attorney or done by you at home. First, have at least three reliable and convenient witnesses that can attest to your “sound mind and body.” The best witnesses would know your current condition, and be able to attest to it later. It is advisable not to include them as beneficiaries in your will.
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Second, it is not required in all states, but all signing parties to the will should witness each others’ signature, and be in the same room, in sight of each other. This decreases the chance for error in following proper will creation procedures. It is not necessary to get each signature notarized, but it can help make the will more powerful.
Lastly, all of the witnesses should sign both a separate attestation clause, which states that the will was properly executed, and an affidavit saying that the will is harmonious and uncontestable. Both can be used at later dates to reaffirm the witnesses’ impression of the will’s execution should the will be contested. These documents underscore the witnesses’ belief that the will was valid when signed, even if the witnesses cannot remember or dispute the exact circumstances of the will’s execution later.
Relatives and others contesting a will may argue that the testator was influenced by scheming persons, or affected by a loss of mental capacity. Or they could try the Randy Jackson means of attack by questioning the authenticity of a will’s signature. The means outlined above will combat the ability of survivors to use such tactics to undermine the execution of your will.
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Please keep in mind: regardless of how it is portrayed in film and television, video wills are useless. Of course, the visual image may provide a historical set of eyes on the will execution, but courts remain suspicious of their validity. Sworn statements (affidavits) and notary seals are better forms of evidence.
Perhaps your estate is not as substantial as Michael Jackson’s, but it is always large enough for you to make smart decisions about the care of your family. Both large and small amounts, and all forms of property, are appropriate for estate planning.
Kevin Noble Maillard is a professor of law at Syracuse University. Follow him on Twitter at @noblemaillard.