I first visited Johannesburg, South Africa in the early 1970’s. I was assigned there for a lengthy period enforcing duties as a Drug Enforcement Administration agent. At the time, Nelson Mandela was imprisoned and had been since 1962. He would ultimately serve 27 years. Mandela became South Africa’s first black president and served from 1994-1999.
Given his notoriety, you would think the Mandela Trust would be rock solid. Well it was, until two of Mandela’s daughters secretly amended the trust document. His daughters, Makaziwe Mandela and Zenani Diamini, conspired with Mandela’s estranged lawyer, Ismail Ayob, to change the trust document so they could get their hands on over 1.3 million dollars. The matter is now being litigated in South Africa.
One of the biggest mistakes I’ve witnessed in my 40-plus years as an investigator is for an individual to not have a court-ready will or trust prepared – or in the case that one is prepared, it is not prepared correctly as to be rock-solid.
In this post I will explain the basics of trusts and wills, the importance of getting one prepared correctly, and recommend experts that can help you and your family with these matters.
Most people, no matter their wealth, postpone writing a will and/or trust for all sorts of reasons. In my experience, there is no excuse for putting off the drafting of these essential documents by a competent and licensed attorney.
I have been advised by well-respected trust litigators on the role a will and a living trust present for their clients. The importance of a will is only overshadowed by the benefits a living trust provides to your living heirs after your death. By having a trust and will established, it will actually prevent what is feared.
There has been little debate on the need for a will. The will is a legal document that determines how a person wanted their assets to be distributed after their passing. The document has no effect until after they die and an individual can change it whenever they want. Yet to be court ready, the document must comply with several state law requirements, including the number of witnesses and whether it must be typed or handwritten. The requirements vary from state to state.
It is highly recommended that an individual seeking to draft a will also invest in the creation of a living trust. The cost to draft a will costs less upfront than a living trust, due to the fact it requires no action on the deceased’s part after it is signed. All of the probate costs are left to the survivors to work out with the courts.
A living trust is more complicated than a will because it involves the management of your property during your lifetime as well as its distribution after your death. A trust must be funded during your lifetime. This may require effort and paperwork to ensure everything is documented correctly. If you fail to transfer all property into your trust, your estate will be probated.
When it comes down to it, wills and trusts are two separate approaches to estate planning. Without a will, the court might appoint someone other than a person you would choose. Whereas a will, allows you to select a personal representative to speak with your authority after death, a trust avoids the probate court system altogether if your trust is created and funded properly.
My recommendation would be to contact a competent living will or trust attorney in your area and work with them to draft proper court-ready documents. In California there are thousands of attorneys involved in this area of the law. How do you find someone? This is an easy call for me.
To avoid any problems with your trust, as in the Mandela’s case, it is imperative that you select a lawyer to insure your trust documents are as you wish and bullet-proof. Do not draft them yourselves or use a legal document service. What you don’t pay now you will pay later in litigation cost. Another great tip is to have your lawyer state that if anyone attempts to challenge your wishes or retains an attorney, they are immediately terminated from the trust.
We have worked many trust litigation cases over the past 40 years and know the top echelon lawyers in this area throughout the U.S. and especially California. and if you follow our blog, you know we are very careful about recommendations of experts. In this regard we have no hesitation. If you are in California and need trust information, call the Law Office of Hess-Verdon and Associates in Newport Beach, Calif. The principal of the firm is Jillyn Hess-Verdon. You can reach them at (949) 706-7300.
You can also consult an experienced private investigator. I always recommend looking for someone who has been a federal agent or has had law enforcement experience and is now in private practice. Many are retained by trust litigators to provide investigative services so they know the top 1% in this field. You can also travel to the probate court in your area and speak with clerks, administrative people, and law enforcement personnel and ask who they recommend.
My firm has built a respected relationship with the local court system. We even published a list of top local lawyers by area of expertise. Perhaps a PI in your area has done the same.
Do you have any questions about finding a talented attorney to help draft your will or trust? Please let me know and I would be pleased to address your concerns.