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Justice Scalia and the Estate Planning Process

Justice Scalia and the Estate Planning Process

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This weekend one of the most controversial figures in the history of the United States Supreme Court passed away.  Whether you hang on every word written by Justice Antonin Scalia, or you cringe at the thought of the vitriol that is reasonably expected in each of his opinions (and it seems like there is little middle ground between the two opinions), It is impossible to argue that he hasn’t helped form the political landscape over the past thirty years of his tenure on the Supreme Court.

He dedicated almost half of his life to the service of our nation on the Supreme Court, but, for an estate planning attorney, this is the time where we can determine how strong his legal game really was.  Sure, he shaped the discussion regarding search and seizure, and sure, the train wreck of campaign finance reform has his fingerprints inextricably etched thereon, but now is when we see how well he really practiced what he preached.  Often it is the case that the mechanic has the most broken down car on the block, not because he lacks the knowhow, but because he spends so much time fixing everyone else’s car that he neglects his own.  Knowing that to be the case, sometimes even Supreme Court Justices failed to properly prepare for the inevitable in their own lives.  Here are some things to watch for when determining how well Justice Scalia understood the law of estate planning.

  • The Men in Black?  The benchmark of a good estate plan is also the benchmark of a good covert government agency, namely, that you never hear about it.  If you hear about how the plan is going through probate, or that these documents or those documents have been released then there is a plan.  This should be a time where even very public families have the opportunity to deal with very private issues.
  • The four letter word with only three letters.  What is the dirtiest, most off color, most offensive word you will ever hear an estate planning attorney say?  That’s easy, its “I.R.S.”.  With a national debt estimated as high as $19 Trillion (yes, with a T), it isn’t hard to understand why the government is desperate for all of the revenue it can find.  That being said, the stock in trade of a good estate planning attorney is to make sure the I.R.S. (pardon my French) can see your property, but can’t reach any more of it than is absolutely necessary.
  • Mission Accomplished.  A good estate plan allows the client to distribute their property to whom they want, when they want, how they want, with the guidance they want.  When wills are challenged or trusts are litigated, it is often a sign that the documents were created in a way that doesn’t CLEARLY establish the client’s wishes.  Of course, if the plan complies with question number 1, we would never hear about it anyway.

If I were a betting man, I would put money on the fact that Justice Scalia had the good sense to go out and hire a professional estate planner to make sure that he had the same amount of control over his legacy as he demanded during his life.  I would bet that, while we will spend years talking about Justice Scalia’s opinions, we will never spend another minute discussing his estate plan.  That being said, there is always Chief Justice Burger to prove me wrong.

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