Just how much do you love your in-laws?
There’s a reason that lawyers hang around with lawyers. We have morbid imaginations. We are amused by our morbid imaginations. Others do not share our morbid imaginations. What is our defense? We have to.
I am surprised that law schools do not offer a class entitled “Parade of Horribles 101.”
When I sit down and talk with a family about their wills, it is my job to run through different possible scenarios that they would rather not think about. That’s my job. (We will set aside the obvious question of why anyone would want to be an attorney given that insight!)
To develop a robust catalog of Horrible Scenarios, all you have to do is watch the local news. (Granted, many attorneys have to watch the evening news on DVR or the internet because they are still working at 6:00 PM and asleep by 10:00 PM.)
Some local examples come to mind. A young couple died in a small plane crash leaving their young child orphaned. A couple on a leisurely motorcycle ride died in a collision. A distressed teenager shot and killed his grandparents.
Should discuss this with your spouse or partner? It depends on how much you love your in-laws.
Most people assume one spouse will die at a time and that the child or children will survive. But what if they don’t? What if there is an accident that takes the life of the child, then one parent, then the other parent. Who gets the family’s assets? What about the millions of dollars in pain and suffering or wrongful death awards? Without a will, in this scenario everything would go to the in-laws of the first spouse to die.
How could that be?
Many people think that “The State” will get your assets if all members of the immediate family die. Perhaps this misconception arose when they heard that the assets past to “the estate.” They sound alike, but they are very different outcomes. The State of Illinois only takes your estate if no distant relative (we are talking about someone you may not even know) can be identified and located.
Whether you have a will or not, the legislature in your state has an estate plan for you called the laws of intestate succession, fancy words for who inherits your property when you die if you do not have a will. ESTATES (755 ILCS 5/) Probate Act of 1975.
Here is the paragraph of that law that would apply to the estate of the last spouse to die if there were no will and the members of a one-child family died in this order: child, spouse, other spouse:
(d) If there is no surviving spouse or descendant but a parent, brother, sister or
descendant of a brother or sister of the decedent: the entire estate to the parents,
brothers and sisters of the decedent in equal parts, allowing to the surviving parent
if one is dead a double portion and to the descendants of a deceased brother or
sister per stirpes the portion which the deceased brother or sister would have taken
Reading this statute illustrates why lawyers have had a reputation for generations for having the capacity for eating sawdust—without butter, not to mention working like a horse, and living like a hermit. See the reference to this maxim attributed to Lord Eldon at page 97 in Blackwood’s Edinburgh Magazine, Vol. CXXII, July-December 1877.1 I digress.
Let’s go back and unpack this paragraph. Assume that husband has living parents, but is an only child. Assume that wife has living parents and several siblings, all living. If husband is the last to die, the entire estate would go to wife’s parents and siblings in even shares. If wife is the last to die, the entire estate would go to husband’s parents in even shares.
Love me some in-laws!
This outcome (all to the in-laws) could be avoided with fairly simple provisions in a will. The couple can choose the person(s) or charity they want to give their estate to in the event that they die without living descendants (children, grandchildren, great grandchildren, etc…).
Keep in mind it becomes much more complicated if there is a deceased parent or siblings or children out of wedlock. It becomes even more complicated if it is difficult to determine which spouse died first. It becomes extremely complicated if the child or one parent died with a cause of action for pain and suffering which then passed at death to the survivors.
Why am I bringing this up?
This is vacation season. The fishing frenzy of the estate planning world. Families call with requests for immediate appointments for a “simple will” because they are going on vacation. They don’t have time to think about all the options; they will take care of that “when they get back.”
“Right,” muses the attorney.
So be patient with your attorney when he or she asks you what you want to do with your assets in situation after situation that you, in your worst nightmares, had not thought of. She is just doing the job you asked her to do. Your family (perhaps not your in-laws) might thank you for taking the time to get it right.