Wills Shouldn't Have Surprises

By Douglas Clark Hollmann, Esq.

They tore down the giant Campbell's soup can in Trenton, New Jersey, recently, ending an era in manufacturing, if not in culinary standards (they're still making the soup somewhere else). The original Mr. Campbell, who lived in Trenton, New Jersey, was the victim of lawyers who were 'too smart.' They advised him to buy a house across the river in Philadelphia so that when he died his estate could claim he died a resident of Pennsylvania. Estate taxes were less in Pennsylvania than New Jersey, so the lawyers thought he'd save money. He didn't. Both Pennsylvania and New Jersey claimed he died a resident of their state, and the two state supreme courts concluded, inconsistent as it seems, that he had died a resident of their particular state.

Everyone thought the US Supreme Court would settle the issue by declaring which state was the winner. After all, how could he die a resident of two states? Unfortunately, the learned justices, perhaps tongue in cheek, ruled that each state could claim Mr. Campbell died as its resident, and his estate ended up paying death taxes to both Pennsylvania and New Jersey.

The object of careful planning is not to be too clever but to avoid as many future problems as possible. You may not own Campbell Soup, but you do sign contracts and make agreements from time to time. Make sure you get things in writing, and read them before you sign them, whether it's for a home or a business. The same holds true for wills and other end-of-life documents.

Which brings me to another man from Philadelphia (assuming Mr. Campbell died a resident of Pennsylvania - the choice is yours). This gentleman left a considerable fortune to his children. The problem was that his entire will read "I leave everything to my kids." Someone who was not a 'kid' challenged the will, but the court upheld it because it satisfied the statute: it was in writing, it was signed by the decedent, and it was acknowledged by two witnesses. The court concluded that "everything" meant everything, and "kids" meant children, so the kids won, but careful drafting could have avoided the will contest and saved a lot of anguish and expense.

Nowadays, however, you don't need just a valid will. You need a living will as well (which handles situations where you are still alive but terminal) and a durable medical power of attorney (which handles situations where you are brain dead or have suffered a stroke). Both documents go into effect while you're still alive, unlike a will which only goes into effect when you're dead. As the medical profession gets better at keeping us alive, you need to make sure your wishes about feeding tubes and medications are known to your doctors. Don't put off taking care of these important papers. We all think we're going to live forever, but one of the unnoticed marvels of life is that we don't usually know when we are going to leave. In most cases, it's a surprise. Plan for surprises. That's what good planning is all about.