As I’m writing this on November 16, 2020, the 2020 presidential election is over, and the various states are going through the election certification process as well as a few recounts. Democratic challenger Joe Biden has a lead of more than 5.5 million votes nationwide and an electoral college vote lead of 306 to 232 over incumbent President Donald Trump. However, there have been major allegations of election fraud and the “stealing of the election”by President Trump, his campaign, and many Republicans that are based entirely on subjective belief without any proof whatsoever. In fact, the federal government’s own Cybersecurity & Infrastructure Security Agency has stated “The November 3rd election was the most secure in American history.”(https://www.cisa.gov/news/2020/11/12/joint-statement-elections-infrastructure-government-coordinating-council-election).
There is no proof of election fraud despite the allegations, and now the courts are being thrust into the dispute. And here is where the law has been seen to ignore political spin, outright falsehoods, and rule based entirely on the facts and the law. Because of this, and the harsh penalties a court can impose on lawyers and witnesses who lie in a proceeding, most of the lawsuits claiming fraud have been summarily dismissed when attorneys arguing fraud are being ordered by judges to submit proof and/or simply state on the record that they have found fraud. So far, the only case to be successful was one in which a judge ordered that certified poll watchers be allowed six feet away from people counting ballots as opposed to twenty feet away.
I started to think about how beliefs are nothing while facts and the law are everything when it comes to my own legal practice area of estate planning. My clients generally know the truth, but it is still amazing to me that what so many people believe about estates is not in line with the legal reality. Here are four estate planning myths I still find people believe:
My spouse automatically gets everything if I pass on. This is only true if there are no children and no descendants. Most people are shocked when they find out that dying without a Will may result in up to two-thirds of their estate being diverted from their spouse.
The age restrictions in my Will or Trust are still binding when using beneficiary designations on accounts. Whenever someone names a child or children as beneficiaries (or contingent beneficiaries) on accounts or life insurance but then detail age of inheritance restrictions in their estate documents, these restrictions mean nothing. Many people are shocked to find out that the hundreds of thousands of dollars in their retirement accounts that name their minor children as “transfer upon death” beneficiaries would go to them at age 18 or 21. This is because the beneficiary designation is meant to bypass probate or the trust.
My family can just use my power of attorney after I die to handle distributing my estate. A durable general power of attorney “dies” when you do because the document legally allows someone to handle various tasks you could do on your behalf. Well, you can’t legally close accounts, take money out, or transfer assets when you are deceased, so your power of attorney agent can’t either.
I don’t need a Will or Trust because my family knows what I want.The fact is without an actual written estate plan that has been signed, witnessed, and notarized with all of the legal formalities, your intention means nothing. In fact, if someone becomes the Administrator of your estate and they choose to follow your “intent” rather than what the State Law says, they could be held civilly and possibly criminally liable. My experience also tells me that if a deceased person has ten relatives, there will be ten different stories about what the deceased person “intended.”
None of these estate planning myths hold up to court scrutiny despite how widespread the belief may be. Unfortunately, the myths persist until they come up against a judge and the rule of law. This will also be the case with all of the Trump campaign challenges to the election results unless they can produce actual, tangible, and legitimate proof of tens of thousands of instances of voter fraud and not just a “belief” that the election was rigged.