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| Catherine E. Sears, Esq. |
As a lawyer, I
am practically required to love Harper Lee’s To Kill a Mockingbird. As an
estate planning lawyer who evaluates clients’ competency on a daily basis, the mysteries
surrounding the 2015 publication of Ms. Lee’s long-lost second novel, Go Set a Watchman, and the author’s
subsequent death in 2016 are as fascinating to me as Boo Radley was to Scout. The story is also potentially as tragic as
Boo’s, as it is widely disputed whether Ms. Lee – who famously shied away from
the public eye after writing Mockingbird
– had had the mental capacity to agree to the publication of Watchman. Some argue that she was competent, while
others worry that those she trusted manipulated her into publishing the sequel
simply to increase the size of her estate which, conveniently, they would
inherit upon her death only a few months later.
Adding to the
suspicion was the fact that Ms. Lee’s attorney moved to have the author’s will
– which had been executed only eight days before her death – filed with the
local court under seal, so that the public could not see the identities of Ms.
Lee’s beneficiaries. Just last month,
however, a lawsuit to unseal the will and make the document part of the public
record was decided in favor of The New
York Times. Though technically a
victory for the Times, the win did
not reveal much more meaningful information, as it simply revealed that Ms.
Lee’s will was a pour-over will that left all of her assets to her trust, which
is not a public record. Thus, the
identity of the beneficiaries and the monetary scope of their inheritance
continue to remain a mystery to the curious public.
Just as Atticus
Finch taught his children valuable lessons in Mockingbird, we can all learn an important lesson from Ms. Lee’s
estate planning. There are significant
differences between will-based estate plans and trust-based plans and,
depending on your family’s financial situation and personal values, one of
these options might make much more sense than the other.
People often
incorrectly assume that trusts are only for the wealthy and that “regular
people” should have a will. As a
best-selling novelist, Ms. Lee was likely an incredibly wealthy woman, so one
could argue that her situation feeds into this stereotype. Certainly, by having a trust instead of a
will, Ms. Lee – like anyone with a trust-based estate plan – likely saved her
estate quite a bit of money by avoiding the various fees associated with the
process of probating a will. Therefore,
there certainly are financial reasons to consider a trust in lieu of a will, especially
depending what kind of assets you have, but this is only one consideration.
By all accounts,
Ms. Lee identified by so many characteristics other than her wealth. She is best remembered, perhaps, for her
desire for privacy, as she refused to be interviewed and openly fought efforts
to turn her hometown in Alabama into a Mockingbird-themed
tourist trap. Similarly, a key
characteristic of a trust is the privacy it affords its grantor (the client
establishing the trust). As The New York Times discovered, trust
documents are private, and, unlike a will, their contents do not become public
with the court even after the grantor dies.
Many clients, even those without large estates, prefer the privacy that
a trust affords as they do not want nosy neighbors or friends to be able to see
what their assets are and who will receive them.
Additionally,
Ms. Lee valued simplicity, as illustrated by the fact that she lived in a
non-descript home with her sister and routinely shopped at the dollar store. Having a trust also conforms with this
characteristic, as a trust greatly simplifies the process of administering a
decedent’s estate. With probate, or the
process of administering a will, there are numerous documents that need to be
filed with the court, as well as strict deadlines dictating when these
documents must be completed.
Furthermore, before the personal representative or executor can even
begin filing the documents, he or she must go through a formal qualification
process. As a result, in Virginia, it
can easily take over a year for even a simple will to be probated from start to
finish. In contrast, administering a
trust is much faster and simpler.
Though many
uncertainties remain regarding Go Set a
Watchman and Ms. Lee’s death, it is indisputable that the benefits of a
trust conformed with the attributes of Ms. Lee’s personality. If you, like Ms. Lee, value privacy and
simplicity, consider discussing with an estate planning attorney whether a
trust-based estate plan is right for you.
Full New York Times article here
