Consistency Is The Key

Consistency Is The Key

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By Linda M. Toga, Esq.

The Facts: My mother’s Will contains provisions that are inconsistent with other documents she has signed and with what she told my sister about the distribution of her estate.

The Question: Are the Will provisions void or are the other documents unenforceable?

The Answer: Unfortunately, the situation you’ve described is quite common and often creates a great deal of tension between family members. While it is too late to avoid the problems caused by the inconsistent documents if your mother has already passed, if she is still alive, an experienced estate planning attorney can work with your mother to eliminate the inconsistencies and avoid the resulting problems. As for which of your mother’s documents and agreements now in existence will control the distribution of her estate, that will depend on the types of documents at issue and the provisions of those documents.

A Will only controls the distribution of assets that are owned by the decedent at the time of her death. For example, if your mother left her car to you in her Will but, signed the title to the car over to your sister before she died, you are out of luck. As long as transfer of the title took place during your mother’s lifetime, the provision in the Will is unenforceable because the car was not owned by your mother at the time of her death.

On the other hand, if your mother signed an agreement with your sister stating that her house was to be sold upon your mother’s death and that the proceeds would be divided between you and your sister but, her Will gives you the right to live in the house until you are forty, the Will controls. Unless your sister can demonstrate that your mother lacked capacity to execute her Will or that you unduly influenced your mother and caused her to sign the Will containing the provision that was contrary to her agreement with your sister, your sister will likely have to wait until you turn forty before the house can be sold and the proceeds divided. The reason for this is that agreements generally die with the parties to the agreement. Unless an agreement specifically states that it is binding upon the heirs, successors, assigns and executors of the parties signing the agreement, the agreement is not enforceable after one of the parties dies.

If the inconsistent documents you are concerned about are a Will and a beneficiary designation form signed by your mother, the terms of the beneficiary designations will control. For example, if your mother signed a form stating that her IRA was to pass to your sister but, her Will stated that her entire estate was to be divided equally between you and your sister, the funds in the IRA will pass to your sister. The balance of her estate will pass in equal shares to you and your sister. The same is true with jointly held property and bank accounts that provide for the right of survivorship. In that case, upon the death of one of the joint owners, the property or the funds in the account automatically belong to the surviving joint owner, regardless of any provisions in the deceased joint owner’s Will.

Because of the complexities surrounding the distribution of a decedent’s assets and the issues that arise when there are inconsistencies between various documents relating to estate planning, it is important to review with an experienced estate planning attorney all of the documents and agreements, oral and otherwise, that you may have in place relating to asset distribution. Engaging in estate planning gives you the opportunity not only to learn about the consequences of signing various types of documents and agreements, but also to look at your assets, consider your ultimate goals and take the steps to insure that those goals are met. Only by understanding the relationship between different estate planning strategies and the documents designed to implement those strategies can you be sure that the documents you sign and the agreements you make are consistent and will result in your wishes being honored.

Linda M. Toga, Esq. provides legal services in the areas of litigation, estate planning and real estate from her East Setauket office.