Generational Wealth-Building, Part 3

Cultural Implications of Intestate Succession Laws

By Madame JFK, Generational Wealth Attorney—All rights reserved

In Generational Wealth Building—Parts I and II, we focused on the legal, economic and tax implications for planning or failing to establish a basic estate plan, or what I refer to as the “Peace of Mind Plan” (November 2006, pgs. 3–4 and December 2006, front page, www.meenanewspaper.com). In the present article, I’d like to shift the focus from wealth-building in economical terms to the sociological aspects of future generations which we hope to someday pass our wealth.

I. Extended Family

“Extended family” generally refers to relatives other than the immediate family nucleus of parents and children. In the African American community, in addition to distant relatives, ‘extended family’ is made up of people who may have no biological, marital or legal relationship to you. In times past, our grandparents and parents were the primary persons responsible for adding extended family members to our immediate families. They are oftentimes longtime close family friends who have been “adapted” (and seldom if ever adopted) as family members, known and referred to as “Sister”, “Brother”, or “Cousin.” The initial relationship automatically weaves you into the existing familial network according to standard biological relationships. Those “play” sisters, brothers and cousins can become significant uncles and aunties to future generations oftentimes indistinguishable from biological family that is until there is a death in the family.

Culturally, African American families often give full recognition to those family members ‘raised by Grandmother or Grandfather’ however many State intestate succession laws do not accord such recognition. Legally, most family relationships are determined by traditional measures –biological or blood relationships or legal relationships created by marriage or adoption. If an individual finds him or herself outside these particular relationships, then intestate succession laws generally provide no legal protections and do not recognize such individuals as legal heirs. In order to provide an inheritance or gift for such persons, individuals or families should consult an attorney to establish an appropriate trust agreement, a major feature of the peace of mind plan.

II. Family Friends, Caregivers and Non-traditional Heirs

If you are planning a gift or bequest to a family friend or a ‘caregiver’ certain legal measures should be taken now with an attorney to minimize future challenges by would-be biological heirs and to provide indisputable evidence that the gift was not the result of undue influence.

As our society attempts to deal with the very real ramifications of elder abuse, recent court rulings, while attempting to interpret legislation designed to protect individuals from the potential undue influence of caregivers, have seemingly enlarged the definition of “caregiver or care-custodian” to a degree that threatens to frustrate the “good-sensed” and “sound-minded” desires of many donor, testators and Grantor-trustees. African American, Asian and Hispanic cultures, where traditionally the elder or senior relatives are expected to age in-home under the care of family members, extended family or close friends, rather than in a nursing facility, may be inadvertently affected by this enlarged interpretation if they don’t seek the legal counsel of a trust and estate planning attorney.

As African American property owners age in urban cities far away from the southern ‘hometowns’ and family network many migrated from during the period 1940-1970, some will find themselves away from or without immediate family and reliant upon new and longtime friends and extended family in their senior years. Perhaps such individuals would prefer to bestow a gift or bequest to those friends and caregivers, at a level equal to or greater than that for relatives or traditional heirs. Quite honestly, there are some relatives to whom we may not wish to leave anything for various reasons including illness, mental incapacity, substance abuse or simply because they never took time out of their busy lives to call, visit or contact us to any respectable degree during our lives.

If you are planning a gift to a non-traditional heir, it might be advisable to obtain a certificate of independent professional review from an attorney other than he/she that prepared the trust or will document. This certificate serves a legal purpose similar to that of a ‘second opinion’ employed in medical treatment. It may also be advisable to obtain an affidavit from a non-interested witness who can attest that the gift was not obtained by undue influence. These measures may discourage potential probate challenges by disheartened would-be heirs which may mean the difference between an expensive, lengthy, court-battle which depletes your estate value or the simple execution of your desires. Additionally, they may ultimately serve as proof that your gift to your chosen recipient was not obtained by that individual’s undue influence over you.

Asian cultural practices may also be thwarted by U.S. Intestate Succession laws. For example, the practice of the first born child inheriting the entire parents’ estate to the exclusion of siblings would not be applied unless provided for within a legally enforceable instrument, such as a trust agreement. Instead, under U.S. Law, all lineal heirs, or siblings will inherent equal portions of their parent’s estate. No preference is given to first-born children, nor is there a distinction between adopted or biological children born inside or outside of the parents’ marital union. Do your part now! Consult a trust and estate planning attorney to establish a basic estate plan and to determine how best to legally ensure your wishes and desires are respected and executed according to your instructions. Contact Jeannette Fisher-Kouadio (pronounced Kwa-jo), or Madame JFK, Generational Wealth Attorney; Email: jfisher19@usa.net; (415) 859-1975.