Beauty products, coins, duplicate tools, duplicate purses, ketchup packets, mostly empty bottles of Viagra, newly discovered family members. . . If these were listed together on a Jeopardy board, the contestant might answer: “What are surprises you might discover when a loved one dies!”
After a loved one dies and enough time has passed that the client feels comfortable discussing the administration process, I might ask if the client has discovered anything the client didn’t know about his spouse before she died. More often than not, the client will share with me some surprising discovery such as those listed above.
Obviously, the unknown family member (such as a child born out of wedlock) is the most serious and the legal consequences need to be discussed. If the family member had not been identified properly in the trust or will, he or she might have a claim against the estate as a “forgotten heir”. It would be very important to address this before the estate was administered and assets distributed or the fiduciary (the Trustee or the Personal Representative/Executor) might have personal liability for distributing the assets and not acknowledging the forgotten heir’s rights. This means that the discovered child could potentially sue the person who administered the estate, personally, to collect an equal share of the assets. Obviously, this is not a desirable outcome and it would have been preferable to properly address all of the children in the will or trust agreement. If the decedent had said “I have a child X, and am intentionally excluding X as a beneficiary of my estate”, the problem would likely have been avoided.
We specify in our wills that clients have “only Y number of children”. Some people are surprised and upset at this phrasing. Are we suggesting the client should have had more children? In actuality, we are trying to be clear that we have identified all of the children of the client, and there are no surprise children going unacknowledged. In one instance, I had a married couple tell me that they actually had two other children, but didn’t feel they needed to mention it to me before, because they did not want to include them as beneficiaries. Had we not discovered this and identified them as excluded individuals in their wills and trust agreement, the unidentified children would have been able to make a claim that they were forgotten heirs and were entitled to a portion of the inheritance.
We also have had instances occur where children discover that a parent remarried and did not let the children know. Sometimes a couple will hold themselves out as “partners” for years and we only later discover they decided to get married years before and just did not tell the children. In a few instances, the marriage actually occurred shortly before the parent died, and then issues arise about capacity, undue influence, and duress. It can be a very uncomfortable and distressful situation for everyone, including the “spouse”.
Less legally significant, but sometimes still unsettling for family members are the other items listed above. One person cleaned his car out every few months and simply threw everything in a bag and then stuffed it in his closet. This is where the ketchup packages from the drive-throughs came to light. Also included in the bags were straws, napkins, toothpicks, and money. It was an average person’s version of Andy Warhol’s desk! (Andy Warhol would sweep the contents of his desk in a box every so often and save it as a time capsule.) Unfortunately, debris from McDonalds isn’t nearly so interesting as debris from Studio 54.
More common and perhaps less surprising is finding wads of money. Many people seem to keep stashes of cash hidden in their house in case of an emergency. This can often be in the form of gold, regular coins, or paper cash. This generally isn’t a problem unless the person starts to have cognition issues. If the person starts hiding money in unusual places (inside coffee cans, books, etc.) it can be a tremendous burden for the family when the time comes to clean out the house. Every nook and cranny will need to be inspected to make sure cash is not inadvertently thrown away. One time, clients took an elderly father to the doctor because he developed a pretty severe limp. When the nurse asked him to undress and hop on the examination table, she discovered he had a cache of coins in his boot! His limp was easily treated.
It's not unusual to hear about a person buying excessive amounts of an item that surprises family members (think purses, tools, lotions, etc.). My vice is journaling stickers, but my family is well aware of this as the stickers tend to be out and scattered around the dining room table. Others feel more self-conscious of their treasures and might hide them in the back of a closet or in the garage, only to be discovered after death.
Humans are complex and interesting creatures. Even those we know best during life can surprise us with their treasures/secrets after death.
And then there’s the Viagra. . . Well, perhaps a topic for another post.
Post by: Vickie R. Wilcox, J.D., LL.M. (Taxation)
Disclaimer: These materials are designed as a general overview and should not be relied upon for legal or tax advice. Please consult a qualified attorney and/or tax advisor for compliance and up-to-date information and advice specific to your circumstances.