Videotaping Your Will Signing Can Produce An Undesired Outcome

Some people make video recordings of their will signings in an effort to create evidence that they possess the requisite testamentary capacity. For some, this strategy may help stave off a will contest. But in most cases, the risk that the recording will provide ammunition to someone who wishes to challenge the will outweighs the potential benefits.

Assessing the downsides
Unless the person signing the will delivers a flawless, natural performance, a challenger will pounce on the slightest hesitation, apparent discomfort or momentary confusion as “proof” that the person lacked testamentary capacity. Even the sharpest among us occasionally forgets facts or mixes up our children or grandchildren’s names. Discomfort or nervousness with the recording process can easily be mistaken for confusion or duress.

You’re probably thinking, “Why can’t we just re-record portions of the video that do not look good?” The problem with this approach is that a challenger’s attorney will likely ask how much editing was done and how many “takes” were used in the video and cite that as further evidence of lack of testamentary capacity.

Implementing alternative strategies
For most people, other strategies for avoiding a will contest are preferable to recording the will signing. These include having a medical practitioner examine you and attest to your capacity immediately before the signing. It can also involve choosing reliable witnesses, including a “no contest clause” in your will, and using a funded revocable trust, which avoids probate and, therefore, is more difficult and expensive to challenge. It should also be noted that most states (if not all) have a formal process for executing a will to minimize the possibility that the will was executed by someone of diminished capacity, or under duress or coercion. For example, in this area (Maryland, Virginia and the District of Columbia) all wills are to be signed in the presence of two witnesses, neither of whom would be possible witnesses to the state of mind of the testator.

If you’d like more information on estate planning strategies, please contact us.

On Air: Daniel Ruttenberg Shares Why You Should Have a Will in Order on ABC 7

A court confirmed that music superstar Prince died without a will, which leaves complicated questions about who inherits his vast fortune. There are at least six siblings, including half siblings, who may inherit, and the confusion is just starting. In an interview on ABC 7, SmolenPlevy Principal Daniel Ruttenberg explained the problems that may occur when you die without a will, and why it’s vital to make sure that doesn’t happen to you.

Ruttenberg explained that without a will, Prince could not direct where his assets should go. “I think that’s a travesty,” said Ruttenberg. Often, people avoid estate planning because they don’t think they have enough assets. But Ruttenberg said you don’t need to own much to learn from Prince’s mistake — plan now and prevent the heartache and need for the court’s intervention after you’re gone.

A will can dictate to whom your money goes, protect your children’s interests in their inheritance and help avoid taxation. News reports predict Prince’s siblings will split the multi-million dollar estate, but Ruttenberg indicates that someone who claims to be Prince’s child could trump all of that.

Ruttenberg told ABC 7’s Kimberly Suiter that whoever does inherit Prince’s estate isn’t necessarily going to be better for it. Sudden wealth has its own set of problems, and many people who inherit a fortune overnight end up blowing it all quickly. They can end up broke, homeless, and in a worse position than they were before getting the money.

NewsChannel 8: Jason Smolen’s Tips for Protecting Digital Assets

Traditionally, estate planning addresses one’s property and finances. Today, more and more people are looking to include their intangible assets like social media accounts, and online photos and videos in their wills. SmolenPlevy Co-Founding Principal Jason Smolen visits NewsChannel 8 to discuss the growing trend of protecting digital assets through estate planning on Let’s Talk Live.

Although laws regarding digital assets are evolving, Smolen says there are ways to ensure your online accounts and media are taken of upon your death. Some websites like Facebook have a feature that allows you to elect someone you’re “friends” with as your “legacy contact”.

For websites and services that haven’t caught on this feature, Smolen suggests going “old school” by designating who takes over each digital asset, and including a comprehensive list of all online accounts and login information in your will.

Digital information like downloaded music, video and books may not be considered assets after all, according to Smolen. Sometimes, purchasing art only means you’re only licensed to use the it while you’re alive.

Watch Smolen on Let’s Talk Live above.

Estate Planning: Lessons Learned from the Deaths of Mickey Rooney & Casey Kasem

Jason D. Smolen

Casey Kasem was the iconic voice of American Top 40. Mickey Rooney was a celebrated actor. But as they aged, the news became about their medical, financial and legal end-of-life issues. For Kasem, it was the battle between his children and their stepmother over his care as he suffered from Lewy Body dementia. For Rooney, it was claims of elder abuse against a stepchild, a will that disinherited his children and estranged wife, and a modest $18,000 estate upon his death, despite his 80-year career.

“These cases demonstrate the problems that can occur regardless of whether you’re a celebrity or not,” said SmolenPlevy co-founding Principal and estate planning attorney Jason Smolen. “ The key is to plan so none of your family has to face these kinds of heartbreaking situations.”

Smolen said conflicts can erupt between spouses from second (or subsequent) marriages and children from prior marriages. They can also occur between siblings, especially when one child primarily cares for an ill parent and the others are less involved. In Mickey Rooney’ s case, it was reported that the actor claimed he lost most of his fortune because of elder abuse and financial mismanagement by one of his stepsons. Rooney executed a new will just before he died in which he left the little he had to another stepchild.

“Wills can be considered political statements,” said Smolen. “ If the reports are accurate, Rooney’ s is especially so.” Smolen opined that Rooney may have been sending a message to his ex and his children: They didn’t take care of him, so he cut them out. However, the more important and potentially divisive issue is the decision as to who will serve as caretakers for aging parents.

Smolen said the Rooney case highlights the need to confront these issues early. If one child is going to be the primary caretaker, the decision has to be made as to which child. How much will that child be allowed to spend of the parent’ s assets—and will that access cause issues with the other children? For instance, if the caretaker takes the parent to dine out often, and uses the parent’s money to pay for the meals, will that become an issue that will cause problems with the other children?

Smolen said the Rooney situation also points out the need to update wills, trusts and estate documents. At SmolenPlevy, absent a significant change in the law or a client’s request, the attorneys review clients’ documents with them every three years. Sometimes changes need to be made repeatedly. After all, Rooney was married eight times, divorced seven and separated from his current wife when he died. Each change in marital status should have resulted in changes in beneficiary designations and potentially trustees, and the execution of new advanced health directives and guardianship designations. While Rooney’ s case is extreme, everyone should have and maintain up-to-date estate plans.

Read more articles from SmolenPlevy’s summer 2014 Report from Counsel