The recent death of Lisa Marie Presley has already led to discord within the family. As is the case with so many famous families, that discord is centered around her Last Will and Testament and other estate planning documents. Last Friday Priscilla Presley filed a contestation claim against the estate regarding the authenticity and validity of Lisa Presley’s 2016 trust amendment. The amendment removed Priscilla Presley and Barry Siegel as co-trustees, replacing them with Lisa Presley’s children, Riley Keough and Benjamin Keough. Notice was not provided to Priscilla as required under the trust, nor was the amendment notarized, as is customary for trust amendments in California.
It is not uncommon for families to attempt to contest wills and trusts. While there is no doubt more to be revealed in relation to the Presley case, there are some lessons that can be drawn from what we know so far:
Signing Formalities:
Unlike a Last Will and Testament, there is no requirement to sign a trust or trust amendment before a notary or witnesses. Nevertheless it is common in California for trusts to be notarized. If someone were to contest your documents, a notary can testify that (1) you signed the document, (2) there was no apparent undue influence, i.e., you were signing of your own free will, and (3) you were aware of what you were signing. When a trust is not notarized, family members wishing to challenge the validity of the trust will have one less hurdle to overcome.
Professional Fiduciaries:
A key priority for many clients is reducing the risk of family conflict upon their death. The question of who to select as trustee is one of the most important when structuring a trust. The trustee has control over all trust assets and is charged with administering the trust in accordance with its terms. Acting as trustee is a serious role and trustees can be personally liable for failing to discharge their duties as trustee. In some cases family members are an appropriate choice to perform the role, but often the use of a professional fiduciary is a better choice. A professional fiduciary is usually an independent third party experienced in navigating a trust’s legal and administrative complexities. In California, there is a licensing regime for professional fiduciaries. Using a neutral party, you can minimize the risk that certain beneficiaries will be favored over others and ensure that an impartial person with the proper expertise is managing your trust in accordance with your wishes for the benefit of your loved ones.
Unusual gifts:
if you are likely to disinherit a family member or leave your estate to a charity, your choice is likely to raise some eyebrows in your family. One important step for your planning is preparing a separate letter of intent signed and designed by you. The separate letter of intent can then be included with your estate planning, further explaining why you have determined to distribute your inheritance in such a manner. The letter can also be used as evidence should someone question your trust’s validity.
One of the lessons of the Presley case is that when it comes to estate planning, following the technical requirements of the law is not sufficient to create an effective estate plan. An effective estate plan is one that does more than merely create legally valid documents; it prevents conflict within the family and is robust enough to withstand challenges by family members. Analyzing and anticipating how conflict may arise within the family and building safeguards into the estate plan is at least as important as creating legally valid documents.
