Often after the death of almost every public figure, the conversation shifts from such person's lasting legacy to his or her estate planning (or often, the lack thereof). The lessons learned from these highly recognizable figures can be invaluable for the rest of us.
For instance, as you may have heard by now, Larry King left a handwritten Will (known as a holographic Will), which was meant to distribute his assets after his death. Like many others, Larry King intended to carry out his estate planning through a very simple and concise writing. Unfortunately, this approach often fails to consider a number of important issues and avoid common pitfalls. As a result, the desire for a "simple" Will can lead to unforeseen problems, excess administration expenses, and even an increased risk of litigation — just ask Larry King's family.
Larry King's Family and Estate Planning
At the time of his death in January, Larry King was married and the father of five children. Although he and his wife, Shawn, were living apart and in the process of obtaining a divorce, the divorce had not yet been finalized. In 2019, Larry created a holographic Will consisting of a few sentences that was meant to revoke his prior Will from 2015. The major difference between the two Wills is that Larry's most recent Will disinherits his wife, Shawn, and leaves his entire estate to his five children, equally.
Following Larry's death, his holographic Will was offered for probate, and Shawn filed objections based on a number of factors, including (i) that Larry lacked the capacity to execute the Will, (ii) that the Will may have been the result of undue influence, and (iii) that the Will failed to comply with the terms of marital agreements between Larry and Shawn. What Larry intended as a simple fix to his Will may turn out to not be worth the paper it is written on because of the additional expenses and litigation that result.
The Value of Experienced Estate Planning
There are a number of key estate planning takeaways and lessons that one can learn from Larry King:
- Holographic Wills may or may not be valid, and the rules differ from state to state. About half of states (including New Jersey) recognize the validity of holographic Wills, although the requirements of a holographic Will vary from state to state. Some states recognize them only in very limited circumstances. In New York, for instance, holographic Wills are valid only when made by (i) members of the armed forces (or those serving with them) who are engaged in a war or armed conflict and (ii) mariners at sea. Other states, such as Connecticut, do not recognize simple holographic Wills.
- Family members have certain rights to your property that cannot be easily avoided. While your Will should reflect your wishes, those wishes may be limited by the legal rights of others. For instance, your closest family members may have the right to contest your Will. This right cannot be defeated, although careful estate planning with the use of an in terrorem, or no contest clause, might be able to incentivize them not to contest, or penalize them for doing so. In addition, in many states, you cannot disinherit your spouse. For example, in New York, even if your Will leaves all of your property to others (as Larry King's Will did), your spouse can exercise a "right of election" and be entitled to receive up to one-third of the value of your assets (including assets that may have passed outside of your Will, by other means), although again, careful estate planning may be able to assist in reducing the effect of the right of election. It is important to note that the rights of family members are absolute and are not altered by the nature of your personal relationship with them—a spouse in the midst of a divorce is still a spouse, and an estranged relative has the same rights as one who lives in harmony with you.
- Words matter. A person writing their own Will knows what they want, but a judge or jury reading that Will years later may not have the same understanding. Even the slightest ambiguity in a Will can lead to protracted litigation.
- Your estate planning attorney does more than just draft documents. Your estate planning attorney helps you craft an estate plan that ensures your property passes to your intended beneficiaries in an efficient and appropriate manner by reducing tax and administration expenses and avoiding potential problems. In addition, the estate planning process, which consists of meetings, calls and written correspondence, drafts of documents sent for your review and for discussion, and a Will execution ceremony, also allows your estate planning attorney to establish a record of your capacity and a clear, legally enforceable expression of your wishes. In addition, when an attorney supervises your Will execution, there is a legal presumption that your Will was validly executed. In other words, anyone seeking to challenge your Will must first prove that it is not valid, as opposed to your estate's representative first having to prove that your Will is valid. As for Larry King's estate case, the presumption that the Will is valid or invalid may determine the outcome of Shawn's challenge.
Larry King's estate planning legacy will be that his holographic Will and the resulting litigation clearly illustrate for all of us the value of engaging an experienced estate planning attorney to prepare documents to achieve your goals. Taking matters into your own hands (either by handwriting your Will or filling out an online Will form) may seem like a simple fix or tempting alternative to the expense and time commitment of engaging counsel, but it is often a gamble with little benefit that can lead to far more complicated problems and expense for your family than expected. An estate planning attorney will identify and solve potential problems early on to keep the planning straightforward and clear in reflecting your wishes, minimizing tax and mitigating potential litigation.