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Merely Creating a Will is Not Always a Sufficient Estate Plan

Many people create a simple will and feel they have provided for their loved ones and heirs. Although they can potentially be valuable estate planning tools, wills also have many shortcomings. Because a will is essentially a list of instructions regarding how a decedent’s assets should be distributed, it normally has little value until the estate enters the probate process. In probate, a judge is tasked with determining whether a will is valid and how the assets in an estate are to be distributed. Unfortunately, as the Derzon case described below demonstrates, the probate process can be lengthy, expensive, and public.

In 1959, David Derzon began a collectibles business that is still currently operating in Milwaukee. When he died in 2007 at age 83, he left the bulk of his approximately $3 million estate, including the family business, to his 59-year-old wife, Rebecca. Prior to David’s death, Rebecca’s own will stated the Derzon estate would pass to David’s two children from a previous marriage and her half brother. A few months after David’s death, however, Rebecca’s will was rewritten. When Rebecca died unexpectedly less than one year after her husband, her will left the entire Derzon estate to her half brother and sister, nieces, and nephews.

One of the main issues involved in the Derzon litigation is the mental and physical state of the couple at the time their wills were created. David’s two sons claim their father was recovering from brain surgery and unable to understand the implications of his decisions at the time his 2007 will was signed. David’s children also believe Rebecca’s half sister, Lori Laatsch, improperly influenced her to change her will in 2008.

According to David’s sons, Rebecca, who reportedly died from an accidental alcohol overdose, was extremely depressed following the death of her husband and suffered from substance abuse issues at the time her last will was created. Additionally, the children allege Laatsch, who inherited 75 percent of their father’s business, went years without speaking to Rebecca and only befriended her near the end of her life. To further complicate matters, the revised will reportedly states it is a draft despite that it was signed by Rebecca. The attorney who prepared it claims Rebecca insisted on signing it immediately during a March 2008 meeting at the family collectibles store.

According to David’s children, Rebecca was an accepted member of the Derzon family and they had a good relationship with their father’s second wife. Still, the 2008 revision was not the first time Rebecca altered her will. In 2006, she amended it to lower the percentage of her estate that each son would inherit and included her half brother for the first time. Ironically, litigation over the will began when Rebecca’s half brother attempted to get a copy of several records from Rebecca’s attorney. Since Rebecca’s death, many court battles have ensued over relevant documents and other records.

In August, Milwaukee County Circuit Judge Jane Carroll will rule on whether Rebecca’s half sister exercised undue influence over the woman. The burden of proof, however, is on those challenging the will’s validity. The lengthy and expensive probate battle may have been avoided entirely if the couple had instead chosen to create a comprehensive estate plan.

Cases like this are some of the most heart-breaking parts of our practice. Challenging a will is an uphill battle, so it is important to get an estate plan right before it is too late.

Our experienced attorneys often draft plans for couples or individuals in their second (or beyond) marriage. These plans often contain language that prohibits a surviving spouse from changing the distribution percentage after one spouse dies. Another technique is to plan the estate so that a portion goes into an irrevocable trust upon the first spouse’s death, and is preserved for that spouse’s children, while still providing income for the surviving spouse for a number of years, or for life.

If you need assistance with a probate matter, or would like to discuss your estate plan with a skilled advocate, we invite you to request a consultation with one of our attorneys. Our experienced attorneys create trusts, wills, health care documents, powers of attorney, and other estate planning tools tailored to our clients’ individual needs.

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