ESTATE PLANNING DISASTERS: THE FORM BENEFICIARY DEED
Whether people fail to create an estate plan or sometimes even when they do, there a host of reasons why the plan or lack thereof can be a disaster. This article will provide an example of an actual estate planning disaster. As a beneficiary deed lawyer St. Peters, Missouri, I have seen plenty of them.
Aunt has a piece of property in a historic part of St. Charles County. She has no children and is a widow. She does however have a grown niece and a grown nephew and she loves both of them. Aunt and their mother were super close as sisters and Aunt especially doted on niece and nephew as they were growing up.
In 2002, Aunt finds a form beneficiary deed at an office supply store. The form automatically includes the language per stirpes typed in after the people listed to inherit the property after her death. She writes in that she wants her nephew and niece to inherit the property equally when she dies and, as listed on the deed already, per stirpes. The deed is correctly recorded.
In 2012, niece passes away. Aunt is now in her late 80’s and unable to create a new beneficiary deed because she is not competent. In the intervening ten years, niece’s son, her only child has grown from a well adjusted ten year old to a 20 year old with an awful drug addiction and several arrests for theft and burglary.
Aunt passes away in 2015. Nephew is referred to my office for help, since he lives on the West Coast. He wants to know how to put the property just in his name since his sister passed away. After review of the 2002 beneficiary deed, I have to tell nephew that he is only entitled to one-half of the property and, unfortunately, has to share the property with niece’s son (his nephew). Nephew immediately tells me that his Aunt said many times that she only wanted niece or nephew to inherit the property because she knew they would take care of it. However, her intent as indicated by nephew is not displayed on the form beneficiary deed.
Meanwhile, soon after Aunt’s death, niece’s son, has already broken into the house and taken almost everything of value, including rare jewelry and antiques. He has also stripped all of the copper and apparently looking for hidden items, tore up the flooring throughout the first floor and the vents in the basement.
I was able to put the property in nephew and son of niece’s name, but I had to refer nephew to a civil litigation attorney to pursue damages against the son of niece. Nephew received a judgment for thousands of dollars and eventually the share of the house belonging to niece’s son was used to collect on that judgment, but the actual damages to the house and the costs of filing suit severely reduced the value of the inheritance.
So how could all of this been avoided?
Hindsight is of course 20/20 but a consultation with an estate planning attorney would have allowed Aunt to be informed that her true intent, to give the property 50/50 to nephew and niece, per capita, would have resulted in the property passing only to nephew at Aunt’s death because niece had predeceased in 2012.
Bottomline: Two Latin words, per stirpes, meant all the difference in this case.