Perhaps it is just coincidence, but I have come across another estate planning fiasco, and once again, it involves an artist. As someone who is closely related to an artist, I can’t say I find this terribly surprisingly. I hope I’m not perpetuating any offensive stereotypes if I suggest that typically, an important part of being an artist is a pronounced disdain for obsessing over material goods, as well as less-than-rigid adherence to following rules. While these qualities frequently serve artists well in their profession, those same qualities can result in quite an ugly picture when certain unavoidable responsibilities that require sustained attention to rules governing material goods, such as estate planning, need to be taken care of.

The artist in question this time is Thomas Kinkade, a painter of landscape and rural scenery. When he died unexpectedly from an accidental overdose of Valium and alcohol, he left behind an estate worth at least tens of millions of dollars. With that amount of money at stake, one would hope for clear instructions on what should be done with it. And it appears that at least at one point, Mr. Kinkade had created those. He had, for instance, set up a living trust, something that usually takes some sophistication and effort to do. He also had a will, directing assets into the trust after he died.

Undoing the best laid plans

Two problems, however, have seriously muddied the waters for those who think they have a claim to Mr. Kinkade’s estate. First, at the time of his death, Mr. Kinkade was separated, but not yet divorced, from his wife. Marital separations can raise tricky estate planning problems because, regardless of what you say in a will, your spouse will likely have a right to some portion of your estate, even a spouse from whom you have separated.

Second, although he appears to have put an estate plan in place, Mr. Kinkade may have undone at least some of that plan by executing two holographic wills since creating the original documents. Although a holographic will may sound like some sort of high tech, cutting edge way to dispose of your assets, it actually is the opposite. It’s a handwritten document, providing instructions on how to dispose of your assets. Many states, including Colorado, recognize holographic wills in certain circumstances.

The end result is a wife and a girlfriend locked in a nasty and expensive court battle, with security guards stationed inside and outside one of the properties at issue 24 hours a day. If you think estate planning is boring, you really should read the article.

Lessons for the rest of us

I can think of at least two lessons that even those of us who don’t have tens of millions of dollars can draw from this story:

  1. Try to keep your marital status consistent with how you are actually living your life. Being married to the person that you would want your assets to go to significantly simplifies things. On the flip side, trying to give your assets to someone when you are married to someone else is a recipe for disaster. Also bad is keeping a will in place that gives your possessions to someone who you have divorced. When you change your marital status, one of your highest priorities should be to check your will and your beneficiary designations on your insurance policies and bank accounts.
  2. Be aware that creating a will can be surprisingly easy, and revoking a will can be surprisingly hard. If you write down instructions about where your stuff should go after you die, those instructions can become legally binding in certain circumstances, even if you weren’t necessarily thinking that what you wrote was a final draft. I remember one case in law school in which a woman submitted a doodle to a probate court showing an arrow pointing to a dot. Her contention was that the doodle was a depiction by her late boyfriend of his intent that all of his stuff go to her. She, apparently, was the dot. Unfortunately, I don’t remember the outcome of the case, but her argument was taken seriously enough to be put into a law school case book. On the other side, if you have a will that you decide to revoke, and you do so by, for instance, writing “void” across the front page, or by issuing a new document that you intend to replace or modify instructions that you already have in place, it’s possible that those actions won’t be enough to invalidate the earlier document.

The bottom line is that if you are writing, modifying, or undoing written instructions about what should happen to your possessions after you die, you should seek assistance from someone who knows how to do what you’re trying to do in a way that courts will understand. You cannot count on common sense to serve as a reliable guide in this area. Whatever Mr. Kinkade was hoping to accomplish, we can be sure that what’s happening now isn’t what he had in mind.