Prince died in April 2016 without a will or trust, according to documents recently filed by his sister in the Carver County District Court in Minnesota. Perhaps a will or trust will surface eventually, as occurred with Michael Jackson’s estate. However, the revelation in “The Morning Papers” that Prince died intestate (legalese for no will or trust) provides an occasion to muse on the “Controversy” that can erupt in California courts when a person of even moderate means lacks an estate plan, while recalling several song titles along the way.
Plan for When You’re “Delirious”
A major goal of estate planning is to plan for any period of incapacity that may occur before we die. News reports suggest that this was not an issue for Prince. But many Americans will experience diminished capacity. The Social Security Administration estimates that a 20-year-old in “America” has a one in four chance of becoming physically or mentally disabled before reaching retirement age. Americans are enjoying increased longevity and with that comes a greater risk of Alzheimer’s disease. The Alzheimer’s Association estimates that 32 percent of Americans age 85 and up have Alzheimer’s disease, which is a progressive form of dementia.
An advanced health care directive names a trusted person to make medical decisions for us if we are temporarily or permanently unable to do so, and provides guidance to that person as to how we wish to be cared for when we are seriously ill. A power of attorney for finances will allow another to manage our financial affairs if we are unable to do so. You certainly don’t have to be rich to need, and benefit from, incapacity planning.
Don’t Let the “Thieves in the Temple”
If you don’t have an estate plan that specifies who will inherit from you when you die, you end up with the default rules enacted by the California legislature. Those rules invite litigation (“When Doves Cry”) as to who will control and benefit from your estate.
Smooth estate administration requires competent leadership, especially if the estate has complex assets such as valuable music rights. In a will, you nominate an executor who will oversee any probate proceeding to administer your assets. If you create a trust, you will also name a person to act as your successor trustee. If you have neither a will nor a trust, however, the probate court will name a person to act as administrator of your estate. Die unmarried with seven kids and they will all have equal priority of appointment as administrator under California Probate Code sections 8461 and 8467, thus leading to a potential showdown as to who will control the estate if multiple candidates ask the judge to “Call My Name.” So, if you strongly believe that child number “7” is both “The Most Beautiful Girl in the World” and the best to manage your financial affairs, you’ll want to designate her as your executor and successor trustee.
Just as an estate plan will permit you to choose who manages your estate, it will also allow you to define who will get what as an estate beneficiary. An estranged child whose parting shot was “I Hate U” will inherit as much from you as the loving child who lives down the street from you in Sacramento and who “Would Die 4 U.” A son in his 20s who is a “Partyman” will get a lump sum distribution from your estate that may be spent in six months, missing an opportunity to provide for that child, and incentivize responsible behavior, through an ongoing trust. Create your own estate plan and you can ensure that your son who will cherish the “Little Red Corvette” as much as you do will receive that vehicle as part of his share of the estate. Unless you specify an allocation of your property, the appointed administrator will have to liquidate it, or divide it up, leading to hard feelings and perhaps litigation as to the disposition of your “Diamonds and Pearls.”
Estates valued at more than $150,000 are generally subject to formal probate administration in California. That means a loss of privacy because your “Pink Cashmere” and other assets must be inventoried and valued in court filings, which in some counties (such as Sacramento County Superior Court) are available to the public online. Creditors and beneficiaries are also identified in the court file for the world to see. In addition, the administrator of a probate estate and his/her attorney will be entitled to a fee based on the value of the estate even if the administration is simple. For example, if you have $1 million in the bank and you die without a will or trust, at least $46,000 will go out the door for probate administration expenses. “Money Don’t Matter 2 Night” when you’re dead, but your beneficiaries probably could purchase all the used “Raspberry Beret[s]” in California if they had the extra $46,000. If you have your assets in trust, or structure them to pass by beneficiary designation, you won’t have to worry about the “Cream” being skimmed off the top in the form of probate administration fees.
Then Again, “Let’s [Not] Go Crazy” About an Elevated Risk of Conflict
Allowing California’s probate process and default rules of inheritance to control your estate comes with the downsides discussed above, but on the bright side those rules can avoid some forms of trust and estate litigation.
A trust or will that favors some relatives over others may trigger a contest premised on mental incapacity or undue influence, especially if the plan is created when you are late in life and/or have serious health issues. Children presume that they will inherit equal shares from their parents and the law (i.e., the rules of intestate succession) defaults to such parity. Leave an estate plan that disfavors a child and you raise the risk of intra-family litigation. Leave no estate plan such that your kids will share equally in whatever “Purple Rain” you’ve left behind and none of them can cry foul.
Also, while the probate process is public, costly and slow (such that it can’t be considered the “Hot Thing” to do), probate does offer a sequential process with court oversight that protects the interests of family member beneficiaries. If you create a trust, and your successor trustee is more prone to party like it’s “1999” than to deal with trust administration, your assets may be squandered before they are distributed out to beneficiaries. If your assets are probated, your administrator may have to post a bond and will have to keep all beneficiaries in the information loop as the estate moves towards closure.
In sum, while dying without a will or trust is not all bad news, having an estate plan provides many benefits for wealthy princes and those who live outside palaces.