As an estate planning and probate attorney, I like to read about what famous people put in their wills. Recently I saw an article online from the Rochester Minnesota Post-Bulletin which indicated that the late Senator Jess Helms’ will was filed in the Wake County North Carolina Courts on July 16, 2008 less than 2 weeks after his death. 

In his will, he requests that his “children try to be as understanding and tolerant of each other as possible.”  As I read that, I thought that is interesting for a United States Senator to write because a senator who wants his legislation to be continuously passed has to be mindful of following that thought.

The Post-Bulletin article which was written by McClatchy Newspaper writer Mark Johnson indicates that Senator Helms divided his estate “between his wife, and a trust to provide any needed support for his wife, children and grandchildren.”

Among specific items it provided that his wife receive his congressional papers; that his stamp and coin collections be sold; and that if no one wanted his Senate desk – I would think someone would want it – that it should be given to the Jesse Helms Center Foundation until a family member requests to use it.

Mr. Johnson indicates that the will repeatedly uses the term “death taxes”.  Many estate planning and probate lawyers use the more benign sounding phrase “estate taxes”.  Helms had been a proponent of eliminating those taxes.

While I am not certain of the probate law in North Carolina, I imagine it is similar to California probate in that wills lodged with the court are available for the public to see.

Ed Masry, became famous as the attorney played by Albert Finney in the movie Erin Brockovich, is still winning on the side of lawsuits despite having died in 2005. This time it deals with estate planning and specifically his living trust.

In 2004, Mr. Masry and his wife of 13 years, created the Edward and Joette Masry Family Trust as their living trust. They appear to have funded the trust with the property they acquired during their marriage. Each spouse was a trustee of the trust. The trust contained language providing that each spouse reserved “the right and power to revoke this trust, in whole or in part, from time to time during their joint lifetimes, by written direction delivered to the other Trustor and to the Trustee.” (“Trustors” are the creators of the trusts and in this case the owners of the assets in the trusts. Some attorneys use the word “Settlors” and others use “Grantors” instead of “Trustors”).

A couple of weeks before his death, Masry executed both a “Notice of Revocation of Interest in Trust and Resignation as Trustee” and a new trust, the Edward L. Masry Trust, with two of his children as successor co-trustees. He virtually simultaneously transferred his assets from the family trust to the new trust.

Needless to say, his widow was not happy and she sought to have the Revocation of the Family Trust to be declared invalid because she did not receive notice during her lifetime. She lost at the trial court level as the judge found that the method of revocation in the trust was not the exclusive method of revocation because the trust did not say it was the only method of revocation that could be used and that the California Probate Code provided an additional method of revocation.

Mrs. Masry appealed the trial judge’s finding to the California Court of Appeal and the Court of Appeal upheld the trial court. The Court of Appeal in its written opinion acknowledged on the one hand, that it might not be fair that one spouse can revoke a trust without the knowledge of the other, but noted that on the other hand, one spouse can dispose of his or her share of the community property without the other’s consent.

Frequently in estate planning and in drafting a living trust or family trust, it is the little things that can make all the difference. That is why we constantly urge our clients to stay on top of their affairs and to review their documents at least annually.