good evening and welcome to LIFE Ahead here on PBS Fort Wayne.
>> I'm Tammy Thompson, the host of the show and I'm so glad that we have such a special topic tonight and two professional guests that are going to be here to answer your questions.
>> Remember this is your show too and we welcome Colins.
That's part of what we do here is try to give you information and education for things that you might be curious about.
So we have two attorneys here tonight if you want to call the numbers on the bottom of the screen right now and that will appear periodically here during the next half hour so you can give us a call in our control room.
>> We have a phone operator back there who is answering the phone calls as they come in and you can tell them your question and if you're not comfortable talking live on the air, they'll type it up and send it out to me here in the studio and I'll give that to our guests.
Otherwise we love when you do talk on the air so that if they have a question back for you, you're still right there on the phone.
>> Meanwhile, our main topic tonight is going to be about pitfalls of probate litigation.
>> Sounds like a mouthful but it's pretty intense topic and we have what can I call you a professional litigator or have you been called that before?
>> That one might be a first.
OK, well good.
I'll take credit for that then.
>> This is Ryan Gardner and he's been with us on LIFE Ahead before and tonight your show because litigation is the main topic you brought Jessica along with you.
Jessica, always wonderful to have you on life a hit.
People know who you are now.
Yes.
I mean I have people to ask about you all the time and she specializes in elder law.
So between the two of them there are a lot of things that they can answer for you.
I'm going to start asking questions but interrupt me with your phone call at any point.
>> So we're talking about litigation, Ryan.
What are some of those common litigation issues that come up nowadays and is that different than 10 or 20 years ago?
>> I would say the most common nowadays would be contested wills.
Oh yeah.
And guardianship.
So when somebody disagrees with the content of a will or whether or not the will is actually an accurate reflection of a decedent's wishes, the family or the heirs of that will can dispute it similarly and guardianship setting if somebody needs a guardian, somebody to help them make decisions medical or financial or legal oftentimes old people who believe they may be better than the next person to make their decisions for that loved one does that happen often with guardianship?
It does.
It does because we've done whole shows with you guys about guardianship so that is often contested as well.
That's pretty interesting, Jessica, because you do a lot of wills as an elder law attorney.
>> What happens if somebody doesn't have will when they pass?
>> Well, we really do try to find a will if we can find one at all.
>> Generally speaking, if somebody truly passed without a will there rules are going to go according to Indiana's intestacy laws, which is a fancy way of saying that somebody died without a will.
So for example, if you are married and you have children, half of your estate would go to your spouse and the other half would go to your children.
>> So it all comes down to who is alive and related to you at the time of your passing.
So if you didn't have a spouse and if you didn't have children, maybe it would look to see if your parents were alive or if you had siblings or someone or some other relatives.
There's a common misconception that it's going to go automatically to the state of Indiana if you if you die without a will and that's not true, they'll be really hard to find some sort of relative.
>> Yes.
You said that half of it goes to the spouse.
What if there's a second marriage or a third marriage?
>> How does that play in?
There are rules for that and it's going to depend on whether or not they had a child together if they didn't have a child together, if there's real property involved.
So it gets very complicated and so it's really important to try to find that will if you can and if you can't then talk to an attorney about what is going to happen with your estate.
>> Oh mine because I mean especially nowadays as opposed to what we said twenty years or something there are a lot more blended family so we get into additional spouses step children, you know, and blended families, that sort of thing.
>> And also with that said with with second marriages families you often have prenuptial agreements as well.
Oh so with a prenuptial agreement that's a whole nother layer of an issue where we would have to examine whether or not the prenuptial agreement that agreement between the spouses before they get married if that will affect the will or the laws of the test and see if there's any waivers of those rights.
>> I'm curious which takes precedence the will or the prenup they typically work together but a prenuptial agreement is a spouse's in some instances waiver of spousal right like a spousal allowance which is a certain dollar amount of spouse gets.
Yeah.
When they're their spouse dies.
>> OK, want to add to that, Jessica, does that get complicated for you at all?
It does get complicated because a lot of times people are trying to avoid probate now and so we are using a lot more payable on death designations.
We're using a lot more beneficiary designations and so those are really truly part of somebodies estate when they're looking at what I'm wanting to pass on to somebody.
>> Sure.
And so you've got to make sure those prenuptial agreements are including those assets that wouldn't necessarily flow through it will.
So it really is important if you are going to do a prenuptial agreement to have the attorney drafting that prenuptial agreement working with your estate planning attorney to make sure that at all matches and it's flowing really the way that you want it to.
>> Oh my.
>> It does get complicated.
I know you want to say something, don't you?
I was just going to say the fun really begins when you have a prenup and a will that conflict with one another and then that's where we're really start talking about litigation.
>> Yeah.
Does that happen very often?
>> Fortunately not too often but when it happens it's not pretty and for time I'm sure where do the courts get involved?
Let's say that somebody doesn't have a will and so they've not even designated a personal representative or anything power attorney or anything.
>> What does that go to courts and who decides what?
So that's what we've talked about in the past about whether or not you are going to have a small estate administration or a formal estate administration .
>> Then it comes down to even if you've passed away without a will or with a will that always comes down to that dollar amount.
>> In Indiana a small estate is fifty thousand dollars.
OK, so if your estate is less than fifty thousand we can use the small estate administration process.
If it's more than that then we have to go through that formal administration process through the court system and you just have to when that personal representative is appointed you're going to have to let the court know was there a will that designated a personal representative or is this somebody who passed away without one and the person petitioning is is asking to be personal representative and that is where the fun can begin because the person that's seeking that appointment may not be the best person to serve in that role or the one that the rest of the family would agree on is that is that happen, Ryan?
>> Certainly or the one that the decedent would want to administer?
You mean the court the judge might appoint somebody that that person that was deceased didn't even like?
Correct.
Or or the court could appoint somebody that the decedent did not appoint.
So let's say a husband dies and he appoints his wife.
The judge could decide wife is not a fit person.
The right person to administer this estate is personal representative and then a court could appoint someone else another interested person, usually another er family member who could better administer the state as the personal representative.
>> All right.
Just so we don't get the wife in trouble, the one theoretical wife so maybe the judge says I don't think this is the right person to be personal representative because of what reasons they don't have a business sense or financial sense.
>> Typically they've done something wrong.
I would say oh they have already they typically have an opportunity to act as personal representative and then they have failed in some capacity.
That's probably the most common reason why a personal representative is removed or replaced is they've done something they shouldn't have.
>> But then there's also instances where your personal representative just can't can't act.
>> Let's say they're incapacitated not of of of sound mind.
I see.
And those things can happen through the years.
>> I mean somebody that you name now maybe in five years or ten years will not be the right person for whatever reason either health or maybe they've moved or or knows what's right.
>> We have a call coming in here.
Hi Joanne.
Thank you so much for watching.
LIFE Ahead tonight and you have a question I'm assuming for Jessica Arien.
>> Yes, I gave question and well I will also follow up football.
I've always had a will for many years and of course things change within just a couple of years.
So you sometimes you need to go back and and and change because of life changing all everything or are part of that will OK so I want him to speak on not including family members because when I first started out with a will yeah.
At that time you had to leave money to family members and now in the newest will that I have you just have to make mention of those family members.
>> Could you please speak to that and thank you.
I'll listen.
OK, boy that's interesting and there are really several answers in one question here, Jessica, I'm going to go back to you because you do a lot of wills.
>> Sure.
What advice can you give Joanne?
So Joanne, it is true that generally speaking if we are going to leave family members out, especially if they would be natural heirs like children or maybe even grandchildren, we do like to mention them by name so that it maybe hopefully reduces the risk of a will contest down the road.
>> We're trying to make it so that they don't come forward after you're gone and say well, you know, mom or grandma, she just wasn't feeling well that day and she just happened to forget normally she would include me but for some reason on that day she just forgot or my sister convinced her to not include me and that's why my name isn't mentioned at all.
So if your name is mentioned and for reasons that your you're excluding this person you don't have to necessarily say the reasons oftentimes we just simply say that I'm leaving this person out not for lack of love or affection but for reasons that are known to me.
>> And like I said, that's how you word it.
It's generally how will word it some something like that because we want to make sure that we're not just simply ignoring that person as like I said, especially if it's a natural error that would have inherited from you through the intestacy laws.
>> We want to make sure that we're acknowledging that we know that this person exists and that we're not including them say that again.
>> The way you would write it in the will is to acknowledge yeah, my grandson so and so I'm going to leave Brian out not for lack of love or affection but because for reasons that are known to me for reasons that are known to me boy that a little little mystery I had the last at this point exactly what did it matter now that's what did it what Druin I really appreciate your question and for you watching and I hope that that has helped you a little bit.
Ryan, is there anything you want to add in terms of litigation like what would Joanne do if her first will before she changed it is what was still there when she passed but it's not really what she would have wanted.
>> Can somebody contests that?
How does that work?
You can so you can say the second will is invalid for a series of reasons and and by law those reasons are she was of unsound mind.
She made the second will or she was being forced to make a second while she was being coerced or she was acting under duress.
By whom?
By anybody we could say that Jessica or Joann to write Ryan out of the will because he had that last known and Jessica was mad at right?
Oh yeah.
So so yes.
For any reason as long as it fits those factors somebody an interested party, another er family member could challenge that second well and say nope the second will is no good because you didn't know what she was doing or she was forced and so now we're going to go back to the first will does the judge make that decision or how do they get involved is actually can go to a judge or jury oh Rajouri even wow.
>> Yeah.
So it can get complicated.
It gets very complicated.
It's very interesting when you leave these sorts of decisions to a jury because it's one of the unique family decisions.
It's my experience that you can leave to a jury family law decisions, custody and divorce work are always left to a judge.
No jury option and family law case ever not in the state of Indiana.
So will contests which are typically family disputes are one of the few family issues that you can try to a jury as the finder a fact.
>> Do you think that's a good idea or can you say personally?
>> Yeah, I do think it's a good idea.
I think it's a good idea we leave juries out of family law cases.
Sure.
But there are a lot more legal issues in a will contest that are not so emotional based.
I think so I think a jury is a suitable fact finder definitely.
>> OK, all right Jessica, what happens if somebody well, maybe they've done a will as far as you know but you're not sure because you can't find it you know, like how do we go about finding that say they used an attorney that's now retired or out of business or whatever?
>> Where would I go to find that Will or can I maybe because this does happen often and so yes.
>> And so if they were part of a larger firm you usually your first call that is to that larger firm because most of the larger firms are going to keep the wills of retired or deceased attorneys are going to be on file.
They're still going to be on file with that firm.
Now if it was a solo practitioner, you may need to contact the bar association.
The Bar Association has a way of knowing what happened to that person's files when they either retired or passed away.
>> How does that work?
I mean if somebody's going to go out of business or whatever, do they have to report to the bar association all the legal things that they they're supposed to report in their current address and things of that nature and who they handed their files over doesn't always happen that way because people pass away suddenly and there's all kinds of circumstances where that just doesn't happen and so usually we say start with the bar association that will hopefully give you a good lead .
>> OK, Ryan, how about that in terms of litigation, do you ever get does that ever get involved legally in terms of going to a judge or jury?
>> Certainly we need to make sure that we we know all the wills and time that a person executed because that shows their intent over that period of time.
>> So let's say John executed five different wills over fifty years.
Those five wills can show his intent or intentions over those fifty year periods of time.
And if I'm missing the third wheel right there in the middle, that third wheel could be very, very important.
It could show what was going on in that period of time in his life and and why he favored one family member or loved one over another.
And when we're talking about a decedent in there, Will we're really talking about their wishes.
>> What were their contents?
Sure tensions.
So having all of those wills are very important.
It's very difficult sometimes to get those because you're usually looking at an extended period of time like what?
>> I mean how long make this whole process last?
What would be the maximum or a minimum?
Oh, I was referring to the look back period of oh look males would be seeking but as far as a period of time for will contest start to finish.
Yeah.
If it goes all the way to a trial I would say anywhere from eighteen months to two years even really.
>> Wow.
So hopefully you can get things settled among you before all of that type of thing would happen.
>> Jessica he talked about different different drafts if you will.
I don't know if I'm using the right legal term of a well how do I know I have the last one.
>> Well I do the best that can to look through somebody's records.
You know, this is one of those things that most attorneys are going to preach about is making sure you keep good track of all of your legal documents, keep them all in one spot, don't have them scattered throughout the house.
If you're going to keep drafts clearly market a draft.
If you're going to keep, you know, a document that you eventually replaced mark the date that you replaced it so that we can kind of track that timeline and some people do keep all of that because they want their family to know their whole history.
>> So the more organized you are, the more kind of notations that you make.
>> It makes it a lot easier for your family.
>> I can assume there might even be cases where somebody is has done their first well with their hometown attorney or whatever and maybe 15 years later they situations have changed much like when Joanne called she said things change and maybe they've moved or their family has expanded or who knows what and they make a new will but with a different firm how can I find all of them and know which ones?
>> Right.
Ryan?
Well, that's a very, very hard almost impossible thing to do sometimes if you have several changes with several different law firms.
One piece of advice I always give clients is give a copy of your will to for say for for instance your personal representative, the person that you're pointing to help administer your state.
You you want them one to know that you've selected them to be your personal representative.
And so the best way of doing that is hey, here's a copy of my will hopefully we won't have to address this for you won't have to address this for a very, very long time.
But here's a copy .
My lawyer's name is on it and and that typically is the best way to avoid the unfortunate circumstances of why I don't know who has the will I don't know who the has the most recent will who do I go to who do I talk to in your experience as a litigator and I'm going to ask you this because I I asked Judge Halk who handles probate cases and I agree with the judge.
He's a smart man, always agrees with the judge.
>> What are the most common things that people disagree with?
>> Let's say that you know that Will's been produced and becomes public and you know, there's somebody that decides no, they should have had the lake cottage or the boat or dad's old 57 Chevy or something and they want to contest for that.
>> What do you find are common things that people or the family members argue about?
>> I would say soundness of mine was the decedent of sound mind.
Oh really?
When he or she executed the will certainly.
>> So they might think that they've been influenced by another family member or maybe it's not even family maybe their caretaker or or something like that certainly or or like Jessica said they just had one bad interaction or one really bad day and then they go out and they make that change and then years go by and everything is fine and the family is getting along again.
But then when that unfortunate day comes and your loved one passes and and you read the will, it's like you're kidding.
Dad wrote me out of the will five years ago and oh my gosh, it must have been because that one argument that happened back in nineteen sixty five or something certainly wow.
>> Could they contest the will then and say no everything's cool now they can but just because you have a good relationship at the end doesn't mean that changes the intent of the will and so that's where the soundness of mind comes into play.
Did the decedent make that decision with a sound mind?
>> I see.
I see.
I want to add to that Jessica and your experiences with doing Mills.
>> Well, I know what magistrate could say and he would say people always argue over the personal property and I would agree because a lot of times what happens with estates that I'm helping administer or other attorneys are administer and we get into a situation where people are fighting over the one hundred year old cookie jar because it has such sentimental value and so but that is when questions of sound mind come up and questions of where they under duress, where they being unduly influenced.
That's when those questions come up because they think surely mom would have left me that cookie jar.
We made cookies every Sunday together and I know she would have wanted me to have that.
>> So because she didn't give that to me this is what happened.
You know, she was being influenced by somebody else.
>> So it really for the most part I see people fighting over that personal property but that leads into those questions of why didn't I get that?
>> Yeah.
And then we get into all the emotions that are involved.
>> I'll tell you about Judge how can I answer when I ask him that question and what what kind of things do people or family members argue about the most?
You know, after the world's been read and they didn't get what they wanted or whatever and he said what do you think it would be the lake or the farm out in Whitley County or something?
>> And he said it's usually a personal property with an emotional attachment and he said like maybe the tea set the great grandma bought it Niagara Falls in nineteen forty two but she always made tea for me and that's so she wanted me to have that so she said it's a little things not the big things but it can get very I don't want to say violent it wouldn't get violent contentious contentious contentious that's much safer on a much more appropriate legal term I think what's the difference between a contested will and a supervised administration?
>> Jessica, you start well, a supervisor administration is one where the court is going to require that before assets are either sold or distributed to the heirs that the the personal representative get the permission from the court.
So for instance, before they sold real property, they would have to provide the court with an appraisal and a request to either list it or to auction it or to maybe distribute it to a family member.
It just kind of depends on what assets we're talking about so that supervision really does mean that the court is supervising the all of the transactions of the personal representative aside from paying daily bills and things of that nature contesting the will, how long does that period last?
>> It's for throughout the whole entire administration.
So if it takes you six months to administer the estate, it's just that six months if it takes a year and a half because you are in a conscious situation, it's the whole time.
>> OK, all right.
I want to add to that do you have that situation very often as a litigator, as a litigator when I whenever I have a contested estate I always request it be supervised.
Oh, every single time now the law does not require that every contested estate or contested will and an estate be supervised.
But from a litigation standpoint I believe that's the right thing or the most appropriate thing to do so that you know that you are monitoring that personal representative and ensuring that they're not doing anything with the estate property while you're disputing the will because if they say everything should come to a standstill while the contest is going on, that's a very good way to put it.
>> Yes, I now sometimes when you have a business interest or real estate or something like that, it can't come to a standstill and that's why you want to make sure you're monitoring what the person representative is doing with the property.
>> Does that happen very often people not not doing what is appropriate as a personal representative, none of our clients of course not.
>> Absolutely.
Unfortunately it happens and that's why we have people like me that's like Jessica has lawyers like me on your team to help litigate those unfortunate circumstances when somebody makes a mistake.
>> Yeah.
And it can happen or maybe it's not a mistake.
>> Maybe it's just a change of situation.
Jessica, you have 30 seconds to give our our audience some good advice in terms will or what they can do to avoid having to acquire a litigator like Ryan.
>> Yeah, I feel like I say it all the time when I'm on the show like I'm a broken record.
But plan ahead really get yourself organized as far as what you own really truly know the ownership.
Is it joint with somebody?
Is it yourself know who your beneficiaries and keep yourself up to date with that life happens you get more kids, you get more grandkids and these things change switch jobs so keep yourself organized and then try to communicate as much as you can with your family.
>> The more communication usually we can really kind of reduce some of these just high emotions and and hopefully avoid the situation.
>> You've done such a great job tonight, both of you.
Ryan, what a privilege to have you here and I'll try to avoid my life ever having to come to you for litigation.
>> Well, I'll try to have all the ducks in a row.
Jessica, always a delight to have you with us and for the rest of you, I hope you'll watch us again next Wednesday night at seven thirty.
We'll have new guest here and we'll have another new and informative topic for you right here on LIFE Ahead.
>> Have a great night