Wealthy families fight over estates for zillions of reasons.
Some family members may consciously or unconsciously link their self-worth to the perceived approval that an inheritance represents, or to the apparent disapproval that a disinheritance signals.
Other times, people who have just lost a loved one might face anxieties about their own mortality, which they could try to assuage by clinging to money and arguing over knickknacks.
In still other cases, family members with mental health and substance abuse issues—or those who are just plain jerks—can escalate ordinary grievances into major personal and legal battles.
Fortunately, private wealth advisors can anticipate these hostilities and the litigation they spawn by considering six common scenarios that lead to estate challenges and letting clients know about solutions well before the (mink) fur flies.
1. Inadequate Estate Planning
Although the uber-affluent can afford the crème de la crème of estate planners, after many of the rich and famous die, the popular press sizzles with news of easily avoidable planning mistakes.
Take the case of reclusive heiress Huguette Clark, which involved two wills signed when she was at an advanced age and some less-than-stellar legal and tax advice.
“Huguette’s estate is an excellent example of what can go wrong in planning. Everything went wrong in that situation,” says John Dadakis, chair of law firm Holland & Knight’s private wealth services group in New York. Dadakis represented Clark’s estate.
Clark was the daughter of former U.S. Sen. William A. Clark of Montana, who made a fortune in copper mining. She died in 2011, just shy of 104 years of age. Clark signed two wills when she was 98 that became the subject of a contentious probate case.
The first will left most of her $300 million estate to 21 distant relatives, many of whom she either didn’t know or hadn’t had contact with since the 1950s.
The second will, signed several weeks later, canceled the previous version, excluded the remote relations and substantially increased a bequest to Clark’s nurse. The new will left the rest of Clark’s estate to her goddaughter and to a foundation that Clark established.
Not surprisingly, the disinherited relatives challenged Clark’s second will, which they alleged she was manipulated into signing. After two years of litigation, the case settled just before trial with the relatives receiving $34.5 million. The nurse abandoned her claim to any further sums and agreed to return about $5 million of the $30 million in gifts that Clark had given her over the years. Clark’s goddaughter received a bequest, and the remainder of the estate went to arts organizations, including the foundation that Clark created.
The same attorney at “a small law firm” drafted both wills, according to Dadakis. “He did estate planning as a secondary interest. He was really a real estate lawyer.”
Clark’s estate planning was also hampered by a lack of coordination between her attorney and her accountant, says Dadakis. “Estate planning is really about teaming up with the right people. The two of them should have prepared gift tax returns for her. She made substantial gifts while she was alive.”
The estate’s administrator ended up filing claims against the small law firm, as Clark’s accountant had few personal assets to go after. The law firm had only $5 million in malpractice insurance to cover a $30 million penalty for failing to file the federal gift tax returns.
Multiple wills, as in Clark’s case, may be problematic, but it’s almost always worse to have no will at all. Fifty-two percent of the approximately 1,000 Americans age 18 and over that BMO Wealth Management recently surveyed did not have a will, according to the March 2017 report “Estate Planning For Complex Family Dynamics.”
Estates without direct, obvious heirs are the most frequently challenged, experts say. For example, Grammy Award-winning musician Prince Rogers Nelson was only 57 when he died in 2016 without a will. He left an estimated $300 million estate before taxes and expenses. Prince’s six siblings are, as of this writing, reportedly still arguing over how the assets should be distributed.
A comprehensive estate plan, if it’s going to reduce the conflict among heirs, should have an up-to-date will, trusts (living trusts and special needs trusts, for instance) and an impartial executor. The plan should prioritize charitable and philanthropic contributions. The estate planner should also consider tax efficiency and ensure there’s enough liquidity in the estate to pay bills and taxes (one way for planners to do this is by making sure life insurance proceeds are adequate). And if family members are unlikely to cooperate in administering the estate, experts recommend that planners appoint professional trustees.
The larger and more complex the estate, the more a team approach to trusts is required, says Dadakis. He recommends that estate planers appoint an administrative trustee to keep the books and records, an investment management trustee to hire (and fire) investment managers, a distribution trustee to decide when and how to distribute funds to beneficiaries and a trust coordinator to ensure that everyone else is doing his or her job. “Having one person do all the work for a trust is basically going by the wayside,” says Dadakis.
2. Lack Of Communication
Disputes over inheritances frequently have a common origin—poor communication about the estate plan. As the shock and sorrow of death set in, heirs who are unprepared for the terms of a will or the disposition of an estate may become upset enough to sue.
“Generally speaking, people don’t do all that well with surprise under any circumstances. When you’re in the middle of the natural grief process, adding the element of surprise about an estate plan makes emotions even more intense,” says Patricia Armstrong, senior director of planning, family dynamics and education at Wells Fargo’s private bank Abbot Downing.
Old grievances, such as petty sibling rivalries, can explode into bitter conflict when family relationships are inevitably altered by death, especially the passing of patriarchs and matriarchs.
Armstrong says that sibling challenges usually involve strong emotions fueled by grief and each individual’s expectations about what’s fair. “It’s only natural that the situation is rife for potential dispute. The way you mitigate that is by doing as much communicating in advance to reduce the element of surprise, so that people can calmly approach what will likely be a protracted and complex estate settlement process,” says Armstrong.
Contrary to what some parents may think, avoiding difficult estate planning discussions doesn’t reduce conflict. The potential for quarrels usually escalates the longer conversations are postponed.
“Your children are going to read the will someday. … It’s crazy for them to read it after you’re dead for the first time. You’re not in a position to answer questions—unless the Ouija board really works,” Warren Buffett said at Berkshire Hathaway’s 2013 annual general meeting, according to an article in The Globe and Mail.
Unfortunately, BMO Wealth Management’s survey indicates that important conversations are not taking place as often as they should. “When asked if their parents had shared their estate distribution plans or details of their wills and executor selections, only 28% of respondents indicated that they have had these discussions,” according to the report.
“If parents are not comfortable with verbal communication, they might begin by writing a ‘letter of wishes’ or a ‘legacy letter’ that lays out their hopes for what the inheritance will do for the recipients,” says Armstrong. For example, she says a letter could express the parents’ desire that the children use their inheritance for further education or for philanthropy.
Armstrong also recommends Preparing Heirs: Five Steps to a Successful Transition of Family Wealth and Values by Roy Williams and Vic Preisser, which discusses the authors’ research into the legacies of 3,250 affluent families and how to maintain harmony while successfully transitioning wealth to well-prepared heirs.
Besides good intrafamily communication, the wealthy and their advisors need to engage.
Academy Award-winning actor Philip Seymour Hoffman reportedly chose not to create a trust because he didn’t want his three kids to become spoiled trust-fund brats. When he died in 2014, his $35 million estate went to the mother of his children. The failure to establish a trust created a sizable estate tax bill.
Somewhere along the line, Hoffman should have been told that trust funds don’t automatically create ne’er-do-well offspring, says Dadakis. “His advisors failed him.”
Hoffman could have been advised to leave specific instructions governing how much and how often his kids received distributions. His advisors could also have recommended including a provision that the children work at paying jobs or volunteer for charitable causes. If he was worried about the kids’ judgment or wisdom, Hoffman’s advisors could have created trusts controlled by a responsible family member or friend, or by a corporate trustee, until the children reached maturity.
Advisors can also help teach heirs to use wealth responsibly, say by advancing an important social or environmental cause through impact investing.
3. Unequal Distribution Of Assets And Disinheritance
Approximately 60% of Americans surveyed believe that their parents’ estates “should either be divided equally between the children or that the children should each receive an equal value from the estate,” according to BMO Wealth Management’s report. Just 15% of respondents “felt that it would be fair to distribute assets on an unequal basis, with reasons such as financial need or the closeness of the relationship with the child being cited,” says the report.
Uneven distributions of assets can cause serious friction. To minimize the risk of lawsuits, some planners advocate equal or roughly equal distributions to each child.
But unequal distributions can actually be better for heirs in some circumstances. Giving the entire family business to a child who is already operating it may make more sense than splitting it equally among several children.
“If there are three children, two of the children might outvote the third. A minority interest can be worthless if you can’t get along with the other owners,” says asset protection and estate planning attorney Steve Oshins of Las Vegas-based Oshins & Associates.
Those who are not part of the business, or expected to be, can receive other assets. “The business could go to one child, a piece of real estate to the second and life insurance proceeds to the third,” says Oshins.
Unequal distributions of assets may cause some grumbling, but the completely disinherited—especially spouses and children—have almost nothing to lose by challenging estate plans that left them zilch. Still, if the decedent really meant to leave some family members out of his or her estate, that intention should have been thoroughly documented to reduce the probability of a successful challenge. For example, comic and entertainer Jerry Lewis, who died in August 2017 at age 91, reportedly excluded his six sons from his first marriage by name from his will (one son predeceased him). Lewis’s will specifically left all his assets to his second wife and adopted daughter.
If parents truly want to leave out children, Dadakis recommends creating a contemporaneous memorandum separate from the will that thoroughly documents the reasons for the disinheritance. “The lawyer that drafted Jerry Lewis’s will should have a laundry list of Jerry’s reasons as to why he wasn’t providing for these people. The lawyer should have discussed the reasons with Jerry at least once, and maybe twice.”
To further minimize the risk of will challenges, advisors can recommend, and lawyers can include, no-contest clauses. Parents may leave a small, but reasonable, sum to otherwise disinherited children—and if the kids contest the will, they receive nothing. The hard part is determining just how much to leave to encourage them to take the money and run, rather than litigate and risk losing what they’ve been left.
Another solution is to place assets into a revocable trust. Parents would have access to the assets and can change the terms of the trust during their lifetimes. The assets will also bypass the probate process, a plus for wealthy families who don’t want a public record of how much they have and who they left it to.
Disinherited children have limited rights to challenge trusts. One of the few arguments they can make is that their parents weren’t competent to establish the trust. However, the longer a trust exists, the harder it is for disappointed heirs to prevail on this legal theory.
4. (Not-So-Well) Blended Families
Fights over the estates of wealthy people often involve complex family dynamics. Second and third marriages, and additional children from those marriages, can cause deep resentment among original family members, who may see their share of wealth diminish as more heirs are added to the mix.
While sibling squabbles are common, Oshins says the resentment toward stepparents is “by far” the biggest cause of estate battles. In one case where Oshins represented an estate going through probate, the surviving stepfather and his deceased wife’s son racked up $5,000 in legal fees battling over a toaster worth $20.
“The estate was roughly $2 million,” Oshins says. “The surviving husband was really, really nice. He was about 89 years old and in very bad shape. He probably had two years to live. The son who was causing all the fights was in his 50s or 60s. The son was a complete jerk.”
Oshins doesn’t even remember who ultimately got custody of the toaster. But the matter was so contentious that he wanted to personally give the son $20 to “just shut up.”
Armstrong, who has a Ph.D. in psychology, says that fighting over inconsequential items like kitchen appliances is often a pretext for venting larger resentments that original family members may have about incorporating new members, as well as the perceived fairness of asset distribution.
“The object becomes a symbol for the interpretation that the family member is making about what they did or didn’t receive. Those small items really represent the larger conflict,” she says.
Advisors can help clients avoid problems associated with blended families by updating wills and trusts whenever major changes in life circumstances occur, such as marriage, divorce or adoption. Trusts should be reviewed at least once every five years to make sure that the information is current on trustees, beneficiaries, guardians and agents with powers of attorney to make clients’ health-care decisions.
And if children, stepparents and stepsiblings don’t get along, they shouldn’t be named as co-trustees. Some experts recommend appointing one family member or an independent professional trustee who can calm tensions and make sound decisions.
5. Financial Elder Abuse
Financial abuse of the elderly is on the rise, say advocates for the aged. Sadly, the perpetrators are often family, friends, caretakers and advisors who exploit their relationships with older individuals to line their own pockets. Victims frequently hesitate to report mistreatment because they feel emotional connections with perpetrators.
In 2011, legendary actor Mickey Rooney spoke before the Senate Special Committee on Aging about his own experience with financial elder abuse. Rooney, who was 90 when he testified, had appeared in more than 300 movies during his 80-plus-year career and had accumulated significant wealth. Unfortunately, one of his stepsons and his stepdaughter from his eighth wife stole over $2.8 million, leaving Rooney “scared, disappointed, angry, overwhelmed” and financially strapped, according to Dadakis’s colleagues at Holland & Knight, who represented Rooney.
The lawyers at the firm helped get a restraining order against the stepson, recover millions of dollars stolen from Rooney and appoint a conservator to manage his affairs. The stepson was isolating Rooney, and the situation might not have come to light if it weren’t for another family member. “Another one of Mickey’s stepsons was concerned. He was instrumental in bringing the case to the forefront,” says Dadakis.
Rooney passed away in 2014. His determination to speak out led Holland & Knight to establish the Mickey Rooney Elder Abuse Pro Bono Project to represent needy victims of financial elder abuse.
Where vast wealth is at stake, numerous individuals could be involved in defrauding the elderly. Take the case of French heiress Liliane Bettencourt, whose father founded cosmetics giant L’Oréal in 1907. Bettencourt was the world’s richest woman when she died in September 2017 at the age of 94. Her daughter filed suit in 2007 alleging that a society photographer, 25 years younger than Bettencourt and portrayed in the media as a gigolo, had swindled her out of an estimated $1.4 billion to $1.86 billion in cash, fine art, life insurance, annuities and real estate, according to The New York Times.
The daughter’s complaint led to the filing of criminal charges against the photographer, who was tried and convicted in 2015 of elder abuse and money laundering for taking advantage of Bettencourt, who suffered from dementia. Eight other defendants, including several of her former wealth managers, were also found guilty of defrauding Bettencourt, according to the Times.
Advisors can help protect elderly clients from predators both inside and outside the family by paying attention to cognitive and behavioral changes. Advisors may also want to suggest that families run background checks before hiring caretakers.
(For information on Finra’s new rules aimed at reducing financial exploitation of seniors, rules that go into effect on February 5, 2018, see “Finra Deadline Looming, Advisors Must Combat Theft From Older Clients” in the October 18, 2017, online edition of Financial Advisor magazine).
6. Surprise Heirs
Apparently, the rich can afford more of everything—including romantic partners and children.
“Sen. William Clark was as wealthy as John D. Rockefeller,” says Dadakis. “He had children by his first marriage and then his wife passed away.”
After that, the senator became romantically involved with a 15-year-old that he sent to school abroad. “While she was over in Europe studying, she had baby number one,” says Dadakis. “When baby number two was on the way, they backdated the marriage so that baby number one was legitimate. Then he disclosed this to the children of his first marriage. They were the same age as his wife and weren’t really happy about the situation.”
Perhaps the most well-publicized recent case of a shadow family involved journalist Charles Kuralt, who died in 1997. Kuralt was best-known for hosting the “On the Road” segments on the CBS Evening News. Two years after he died, his 30-year relationship with a woman in Montana surfaced. Kuralt had established a second family with the woman and her children, while his wife stayed in New York City and his daughters from his first marriage lived on the East Coast.
Just before his death, Kuralt wrote a letter to the woman leaving her a 90-acre Montana property they had shared. After the woman sued to obtain possession, the Montana Supreme Court ruled that the letter was valid and the land belonged to her, according to the Associated Press.
Kuralt’s wife of 35 years discovered the clandestine relationship only after his death. She inherited his estate, but when she died in 1999 the estate passed to Kuralt’s daughters. The court subsequently ordered the daughters to pay $350,000 in estate taxes on the Montana property, according to the AP.
In a similar situation, a client asked Oshins to set up a “very secret” trust to support the man’s extramarital child; for this trust, Oshins used a different corporate trustee than the one selected to administer the family’s other trusts. Oshins is fairly confident the man’s wife will never discover the covert trust. “The wife won’t find out unless possibly, at his death, if she looks into where he applied his gift tax exemption on his gift tax return. But probably not. Most people don’t even ask those questions,” he says. The child stands to inherit $2 million from the man’s $100 million estate when he dies.
Oshins advises clients to come clean with their partners and name, then specifically disinherit, any hidden offspring, if clients wish to cut them off. “You’re taking a risk that the child will sue and get a share of the estate unless you mention them.”
