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Most Americans do not have Wills. We have discussed the problems with this before on this blog, but it is a subject that is always worth revisiting. If we did not think it was important for people to have estate plans, then we would not do what we do as estate planning attorneys.

However, we can only discuss the many reasons why you should have an estate plan so often. If you are reading this, then by now you know what many of those reasons are and you have heard them many times before. The real question is, if you know the reasons why you should have an estate plan, what is it that is stopping you from taking the next step and getting one?

The answer to that question will be different for different people. For some people it is time. For others it is the perceived expense of estate planning. Some people do not really want to think about their own mortality. It is important to think about why you have not yet gotten estate plan. What is your reason? If we know your reason, only then can we really help you understand how to overcome the problem and move forward with an estate plan.

If you would like to discuss why you do not have an estate plan, we would love to hear from you. We would like to talk about your reasons for not having one so that we can address them with you one on one.

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When a celebrity passes away, it is often interesting to see if there is anything that we can learn from their estate. All too often, we learn the many ways that the celebrity did not plan their estate in an ideal way. However, sometimes, we find out that the celebrity did everything the right way.

It is still early in the estate process, but at this point it appears that Lakers owner Jerry Buss did a good job in planning his estate. The big issue with his estate was the ownership of the basketball team. The value of the team is high enough that there are obvious estate tax issues. Buss needed a way to leave the franchise to his family without forcing a sale to pay the estate tax. Initial reports indicate that he did this and his children will inherit the franchise. That is good news for Lakers’ fans.

It also good news for business owners everywhere. It lets you know that it is possible to leave your business to your family and not lose it to the estate tax. There are several different ways to accomplish this. If you have a business that you would like to leave to your family, then talk to an estate planning attorney about what your options are and how to pick the best option for your business and for your family.

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Recently, Bob Marley’s widow, Rita Marley, and his half-brother, Richard Booker, settled the legal issues between them. The case is an interesting one and is instructive of a common estate planning pitfall that can lead to arguments and litigation between family members.

Generally, Marley’s family has been very protective about how the late singer’s image and likeness can be used. They have even only supported one official documentary out of fear that the singer’s image might be tarnished. Rita Marley filed a lawsuit against Booker that alleged Booker was using the singer’s image to promote concerts and sell merchandise in violation of the family’s copyrights and trademarks. Booker maintained that before he passed away, Bob Marley had given him permission to do so. Booker filed a counter suit on that basis.

In this case, the sides were able to reach a settlement that resolved the issues between them. The problem is that the family fight occurred in the first place. Bob Marley’s mistake might have been telling one person one thing about his property, but not making it clear in his estate plan that he had done so. These situations often lead to family arguments. For most people the argument will not be about valuable, important image rights. However, even something as minor as telling a child that he or she will receive a particular item of personal property, but not making mention of it in your estate plan can lead to problems for your family.

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The Nebraska legislature is considering joining a small group of states that have recently enacted legislation granting the estates of deceased persons’ access to the deceased’s digital assets, such as Facebook and Google+ accounts. The reason that they are doing so is that digital assets are new and under current laws, an estate has to get a special court order to access the accounts and remove or update them. The process can be quite a hassle.

New York is not one of the states that has such a law. If you think that it should, it would be a good idea to contact your state representative in Albany and express your concerns. Of course, even after doing so, it will take a long time for the legislature to enact any new law that takes care of the issue.

Someday, New York might have similar legislation to what is being considered in Nebraska. Until that time, there are things that you can do to make things easier on your relatives. The simplest thing to do is to just make sure that someone responsible can find your user names and passwords for the websites that you frequent. You can also make your accounts and access to them a part of your larger estate plan. If you do not do that, then your relatives will have to jump through the hoops just to update your Facebook page to let your distant friends know what happened to you. Talk to an estate planning attorney about the best option for your digital assets.

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We have previously told you about non-attorneys who set up websites to sell Living Trusts. It should go without saying to our savvy readers that purchasing a Living Trust from one of these websites is a terrible idea. Some of these same people have a new method to try to take your money and give bad estate planning advice.

The new trend is to offer what they call estate planning organizers. Supposedly, you can use these organizers to gather all of the information that you need to plan your estate. Once, you have it all organized, then you can take it to a real attorney and get your estate plan done more easily. While that may sound like a good idea, it is completely unnecessary. These organizers are selling for hundreds of dollars. That is unnecessary money spent before you even start your actual estate planning. A few file folders are really all that you need to organize your documents to take to an estate planning attorney.

Of course, that is not the only problem with these organizers. Many are merely being used as loss-leaders to later sell people the worthless Living Trusts. Know who you are dealing with online. Make sure that before you spend anything to get an estate plan you are dealing with a licensed attorney.

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We have written many times in this space that you need to update your Will whenever there is a significant change in your circumstances. There is another reason that you should update your Will from time to time. You should also update you Will when the life circumstances of your Executor change significantly.

In the early years of the United States, if one of the goals of your estate was to free slaves, then Thomas Jefferson would have been an excellent choice to designate as the Executor in your Will. Out of all of the founding fathers, Jefferson was the most outspoken in condemning slavery. The only reason he did not free his own slaves was that as property under the law, the slaves were subject to the claims of Jefferson’s many creditors. In 1798, a wealthy man named Tadeusz Kosciuszko nominated Jefferson to be the Executor of his Will, which left money that was to be used to purchase and free slaves. However, by the time that Kosciuszko passed away in 1817, Jefferson was in poor health and had to decline to serve as Executor. Eventually, litigation over the estate ensued and the money was never used to free slaves.

Make sure that you update your Will and name a new Executor when the person designated is no longer able to serve in that capacity.

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Most people do not know that there are circumstances where they can create a valid Will that a court will later rule is invalid because it is too old and other things have happened in the intervening years. It is rare that it happens, but it does happen. It happened to the estate of the legendary actor Sir Peter Ustinov.

Ustinov created a Will in 1968 and then got remarried a few years later. His Will is subject to Swiss law. The courts in that country ruled that the Will was too old and invalidated by the intervening marriage. Because of that ruling, Ustinov’s estate is treated as if he died intestate. Ordinarily, that would mean that the estate would all go to his wife. However, he had children from his previous marriage. They claim that Ustinov later created Trusts in England that are still valid. Apparently, the Trusts leave the majority of the estate to the children. The parties have been fighting about the estate for 9 years and there is no end in sight.

The real issue is that Ustinov did not update his Will when the circumstances of his life changed. He should have updated his estate plan when he got remarried. He then should have looked at his plan every few years to make any other changes. His failure to do so has many people believing that his entire estate has been spent on lawyers.

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Estate planning involves financial projections, and this can only be done with a reasonable modicum of accuracy when there is some kind of consistency within the numerical pattering you are working with. However, the recent wild swings in the estate tax parameters year to year has made estate planning quite challenging because what makes sense on December 31st of a given year may not be appropriate the next day. In 2008 the estate tax exclusion was $2 million; in 2009 it was $3.5 million; in 2010 the tax was repealed entirely; and throughout almost all of 2010 the law stated that the estate tax exclusion in 2011 would be $1 million.

There are many different permutations of this hodgepodge that you can highlight, but for instance, if an individual passed away with assets of $3 million in 2008 when the top rate was 45% and the exclusion was $2 million his or her heirs would owe the IRS $450,000. If this person held on until 2009 or 2010, no estate tax would be due. But under the law as it stood until December of 2010, this individual’s $3 million estate would have been presented with a $1.1 million tax bill if he or she died in 2011.

Thankfully, for at least two years we can enjoy some estate tax relief. A new bill that would extend the Bush era tax cuts had been gaining momentum since the midterm elections, and it ultimately passed though Congress and was signed into law by the President on December 17th. In addition to extending these cuts the new law is reducing Social Security payroll taxes by 2%, so the average American will see a little extra fluff in his or her paycheck.

As for the estate tax, the exclusion has been raised from the $1 million that was on tap for 2011 to $5 million for individuals and $10 million for couples. The rate of taxation has been reduced as well, dropping from 55% to 35% on any portion of an estate that exceeds the exclusion.

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If you want to contest a family member’s Will it is important that you do everything right and within designated time frames. Probate Courts will not wait for you to learn what you need to do, nor will they make allowances if you miss deadlines. The battle over Sherman Hemsley’s Will is a good illustration of this.

About a month before he passed away, Hemsley wrote a Will and left everything to a woman he claimed was his “beloved partner.” A man named Richard Thornton came out of nowhere to challenge the Will and claim that he was Hemsley’ half-brother. However, people familiar with Hemsley did not know about a brother. Recently, DNA tests confirmed that Thornton is Hemsley’s brother, which would ordinarily make the Will contest case much better. However, Thornton missed the deadline to have the DNA results entered in evidence in the case and the Court will not consider them.

Make sure that you hire an experienced Probate attorney as soon as you think you might want to contest a Will. You do not want to miss any important Probate deadlines.