Lessons From Fisk: Limits on Testamentary Freedom

Lessons From Fisk: Limits on Testamentary Freedom

By Melinda Gustafson Gervasi

November 24, 2024

There is nothing in the world so irresistibly contagious as laughter and good humor.

― Charles Dickens, A Christmas Carol

Seeking a dose of laughter to offset the heaviness of world news and the increasingly shorter days of sunlight?  If you have Netflix, you may enjoy the Australian ABC comedy that first aired in March of 2021, Fisk.  Starring Kitty Flanagan as Helen Fisk, it is a witty comedy set in the law office of Gruber & Gruber, a small (shabby) suburban office that focuses on estate planning and probate. 

Recently I laughed my way through all six episodes of Season One.  I enjoyed them so much that I rewatched them with my husband.  With hyperbolic scenarios, the show explores accurate aspects of my everyday work life.  Today, and for the remainder of the calendar year, my weekly blog post will examine each episode and a take-away for the viewer seeking to learn more about estate planning and probate.

Day one at in her new position as an associate with Gruber & Gruber, Helen finds herself face-to-face. with her first client, Ruth O'Mallely.  Ruth explains that her mother died recently, and under the will, the estate is to be shared equally between Ruth and her brother Dean,....on one condition. Upon reading the will, Helen informs Ruth that the condition of the will cannot be enforced. For those interested in watching the series, I will avoid the specifics of the episode. The scenario is a perfect example of limits on testamentary freedom.

Here in the United States, estate planning and probate laws are written by state legislatures.  That means each state may have slightly differing rules and laws about this area, however, general concepts can be found from sea to sea.  In general, a court, when asked, will not validate a clause in a will that violates public policy.  The most common example of a will violating public policy would be a clause that either encourages divorce or limits marriage.  

As Helen explains to her client, just because a will dictates a condition on inheritance, does not mean a court would enforce it.  "My daughter inherits my entire estate if she divorces her husband" would be an example of a will provision a court would not enforce because it encourages divorce, which is viewed as contrary to public policy.  If you would like a more colorful and humorous example of this legal concept, check out the first episode of Fisk. 

Remember that a blog post is meant to spark thought and discussion, it is not legal advice.  Please consult an attorney in your state of residence for legal advice specific to your situation.  Thank you for reading, be well. 

 

How to Get Your Elderly Parents Talking About End-of-Life Issues - Use a Book to Spark Conversation

How to Get Your Elderly Parents Talking About End-of-Life Issues - Use a Book to Spark Conversation

By Melinda Gustafson Gervasi

November 17, 2023

"Seriously Mom, maybe you could try read something a little less depressing.  What is this?"

Wisecracked my 13 year old daughter as she passed my home desk one evening.  

"Oh, that.  It's a book I've read already.  Gail gave it to me as sort of a gag 50th birthday gift.  Gail's sort of doing Swedish Death Cleaning and thought I'd be a good place to re-home the book."

Image by M. Gustafson Gervasi, the author's 50th ice cream birthday cake

The book is the graphic novel, a memoir technically, by Roz Chast, titled Can't We Talk About Something More Pleasant.  Released in 2014 it was a National Book Award Finalist, and it may be just the thing to take with you when you go home for the Thanksgiving Holiday or if you are hosting this year, set it out on the coffee table.  The book caught the curiosity of my teenager; it may do the same for the elderly family members who don't know exactly how to get talking about "stuff".  You know, "stuff;" powers of attorney, long-term care, wills, funeral arrangements, etc.   Sometimes talking about an author's experience is an easy gateway into talking about your own wishes.

Chast's book is a quick read and offers her experience with parents that were resistant to talking about the end of life and their wishes.  As we enter the time for winter holidays, families tend to gather.  Many adult children wonder about how to get their parents talking about end-of-life matters, this might be one approach.  I'd suggest that if you do get the book and have a talk, pull out some chocolate to soothe the emotions. I keep a bowl of Ghirardelli chocolate in my office for clients -- sometimes they need a boost after talking with me about worst case scenarios.

My copy of the book, atop my home writing desk

A blog is intended to spark thought and discussion, it is not legal advice.  Please consult with an attorney in your home state for advice specific to your situation.  Thank you for reading!  Follow along with future posts; click Follow in the upper right corner and enter your email address.   Be well!

 

Middle Class Philanthropist - How Anyone Can Leave a Legacy

Middle Class Philanthropist - How Anyone Can Leave a Legacy

By Melinda Gustafson Gervasi

November 10, 2023

Ten years ago I published a small book, designed to be read in an afternoon while enjoy a mug of coffee or a cup of tea.  The intent behind Middle Class Philanthropist: How Anyone Can Leave a Legacy was to inspire the average American to be philanthropic when creating or updating an estate plan. Much is written about philanthropy in November because the 15th of the month is National Philanthropy Day. All too often the stories of giving involving multi-millionaires donating sums most of us cannot wrap our minds around.  But there is another path to philanthropy, one any of us can take. 

I hold the core belief that anyone can leave a legacy. It does not require excessive wealth when directed with intention and purpose.  If you want to leave this world with a final gift, here are a few options noted in my book:

• Designate an In Lieu of Flowers charitable cause.  Recently I attended the funeral of the father of a childhood classmate.  Instead of purchasing flowers the family encourage mourners to donate to one of his favorite causes.  My family did, sending a donation in his honor to the UW Veterinary School of Medicine fund for families in need of financial assistance.
• Donate 2% of your retirement accounts to a non-profit.  All it takes in a quick update to your beneficiary form to name a nonprofit that made a difference in your life.  I opt for 2% because it is "a little something" that in the end may not be missed by other dependents.
• Encourage your family and loved ones to hold a garage sale for tangible personal items that no one else needs, with the proceeds being directed to a nonprofit you select.  Promote this giving opportunity at the sale, and have literature on hand for shoppers who may want to learn more about a cause you felt was worthy.

These are three simple acts, which you can likely accomplish without having to visit an attorney's office.  Everyone can make a difference in this world.  If you want to read more about my thoughts on Middle Class Philanthropy I encourage you to purchase my book, or for those in Dane County, Wisconsin, check a copy out from your local library.

Remember a blog is not legal advice, but rather a spark for thought and discussion.  Please consult an attorney in your state for advice specific to your situation.  Thank you for reading, and be well. 

3 Situations When A Living Revocable Trust May Make Sense

3 Situations When A Living Revocable Trust May Make Sense

By Melinda Gustafson Gervasi

November 3, 2023

America is made up for fifty different states.  Laws related to estate planning and probate are written at the state level.  That means there are fifty different sets of laws and regulations governing end-of-life matters.  It is critical to know the ins and outs of the laws of the state you reside in when creating an estate plan because terms, fees, and responsibilities can vary greatly.  For example, the cost of going through probate in Wisconsin is quite low compared to an estate in California.  More specifically, under Wis. Stats. 814.66 the fee assessed on a probate estate is 0.2 percent.  In contrast, according to online research the fee in California is more complicated and costly:

In California, statutory probate fees are based on the gross value of the estate and are as follows: 4% on the first $100,000; 3% on the next $100,000; 2% on the next $800,000; 1% on the next $9,000,000; 0.5% on the next $15,000,000.

Image by M. Gustafson Gervasi, 2023

Because probate in Wisconsin is not nearly as expensive as other states, I find that many of my Wisconsin clients can accomplish their goals without the cost and complexity of a Living Revocable Trust, which is a sophisticated tool that creates a virtual basket to hold your assets and distribute them at death, bypassing the probate court system.   However, there are 3 situations in which I think a Living Revocable Trust needs consideration:

1. Owning real estate in multiple states.  Years ago I had a client with a home in Wisconsin, a cabin in Michigan and a condo in Arizona.  If the client used a basic will, probate would happen in three states (WI, MI, and AZ).  Using a Living Revocable Trust would allow the properties to be re-titled and placed into the trust, which would distribute them at death, and thus avoid probate.  In this situation the client opted to use a more simple tool, the Transfer on Death Deed, which was available in 2 of the 3 states;
2. Families with second marriages and children from outside the union. In this situation you may want to use a Living Revocable Trust to create an asset pool the surviving spouse can use, but not deplete or re-direct to other people when the first spouse dies.  A Living Revocable Trust can be used to "lock-down" part of a couple's assets at the death of the first spouse in an attempt to ensure children from outside the marriage inherit.  This does set up a situation in which the surviving spouse's activity is scrutinized by the deceased spouse's children, which could lead to awkward holiday gatherings and tension; and
3. When you are "writing out" a natural heir from your estate.  A Living Revocable Trust allows for your final expenses to be paid and your assets distributed without going through probate.  Normally, the probate process requires notification of all "interested persons" -- those named in the will and those who would inherit under statutes if there were no will.  It acts as a check on the will to root out fraud or undue influence, and can create an easy venue for a disgruntled person to challenge a will.  Since a Living Revocable Trust does not go through the court process, these this too-easy to dispute path is avoided.  In a sense, it can reduce the chance of needless litigation.

Those are the 3 scenarios that immediately lead me to discussing a Living Revocable Trust with clients.  Note, a blog is NOT legal advice. It is meant to spark thought and discussion.  Please consult with an attorney in your home state for advice specific to your unique situation.  Thanks for reading, be well, and click FOLLOW in the upper right corner to enter your email and receive future posts.