10 Estate Planning Mistakes to Avoid
Estate Planning Mistake #8: Making Informal Changes to Your Estate Plan — Thomas Kinkade
A handwritten note can change a will. It can also create a very expensive question.
The Thomas Kinkade estate planning dispute illustrates what can happen when informal documents collide with an existing estate plan.
Kinkade, the artist known as the “Painter of Light,” died in April 2012 at age 54. He was legally separated from his wife, Nanette Kinkade, and was living with Amy Pinto-Walsh at the time of his death.
Kinkade already had an estate plan. But after his death, two handwritten documents surfaced that appeared to give Pinto-Walsh substantial property.
The result was a very public estate dispute.
Thomas Kinkade Already Had a Will and Living Trust
Kinkade’s planning did not begin with the handwritten documents.
He had created a living trust in 1997. He later signed a will in 2000 that directed assets passing through his estate into that trust. See Los Angeles Times.
According to published reports, the trust already held much of Kinkade’s property, including original artwork, intellectual property rights, and interests in his business.
Then came the handwritten documents.
Pinto-Walsh presented two writings that she said Kinkade prepared in late 2011. One purported to leave her Kinkade’s Monte Sereno home and $10 million. Another referred to establishing a Thomas Kinkade museum at the property.
Kinkade’s widow and Pinto-Walsh took competing positions over his estate.
A Handwritten Will Is Not Necessarily Invalid
It would be easy to draw the wrong lesson from the Kinkade dispute.
The problem was not simply that the documents were handwritten.
California recognizes what is commonly called a holographic will. A handwritten will can be valid without witnesses when its signature and material provisions are in the testator’s handwriting.
That meant Kinkade’s handwritten documents could not simply be ignored because they lacked the formalities associated with his earlier estate plan.
Instead, lawyers had to determine what the documents meant, whether they were legally effective, and how they interacted with the documents and property arrangements already in place.
An Estate Plan Is More Than a Will
The Kinkade dispute also illustrates a broader point.
A will controls only certain property.
A living trust controls property held in the trust. A beneficiary designation may control a life insurance policy or retirement account. Property ownership can determine what happens to real estate or financial accounts. Marital rights may create still another layer of complexity.
Changing one document does not necessarily change everything else.
For example, one of the writings attributed to Kinkade referred to $10 million from a corporate insurance policy. But a will generally cannot change the beneficiary of a life insurance policy. The policy’s beneficiary designation ordinarily controls who receives the proceeds.
That distinction is easy to miss when someone attempts to change an estate plan without reviewing the entire plan.
New Jersey Has a Similar Rule for Handwritten Wills
This lesson matters in New Jersey too.
New Jersey law generally requires a will to be signed and witnessed. But there is an important exception.
Under N.J.S.A. 3B:3-2, a document may qualify as a writing intended as a will even without witnesses if the signature and material portions are in the testator’s handwriting.
New Jersey law can also recognize other writings that fail to meet the ordinary execution requirements when clear and convincing evidence establishes that the decedent intended the writing to operate as a will, a revocation, or a change to an existing will.
That means a handwritten note found after death should not automatically be dismissed as meaningless.
It can instead become the beginning of a probate dispute.
The Thomas Kinkade Estate Planning Lesson
People change their minds.
Families change. Relationships change. Assets change. A person who signed an estate plan years ago may legitimately want something very different today.
The answer is not to avoid making changes.
The answer is to make those changes carefully.
If you want to revise an estate plan, review the entire plan at the same time. That may include:
- your will;
- revocable and irrevocable trusts;
- beneficiary designations;
- ownership of real estate and financial accounts;
- life insurance;
- business interests; and
- powers of attorney and health care documents.
The documents should work together.
A handwritten note may express exactly what someone wants. But if that note conflicts with an existing will, trust, beneficiary designation, or property arrangement, the people left behind may need lawyers and courts to determine what the person actually accomplished.
How the Thomas Kinkade Estate Dispute Ended
Kinkade’s widow and Pinto-Walsh ultimately resolved their dispute in December 2012.
The settlement was private, and its terms were not publicly disclosed.
That means we do not know how the parties ultimately divided the disputed property.
But we do know what happened before the settlement: competing estate documents, competing interpretations, probate proceedings, lawyers, and months of public litigation.
The estate planning lesson is much clearer.
When your wishes change, change your estate plan—not just one piece of it.
A coordinated plan gives your family a much better chance of understanding and carrying out your intentions after you are gone.
This article discusses publicly reported information concerning Thomas Kinkade and his estate for educational purposes. The dispute was resolved by a confidential settlement, and publicly reported allegations and positions should not be treated as judicial findings.
How long has it been since you reviewed your estate plan with an attorney?