10 Estate Planning Mistakes to Avoid
Estate Planning Mistake #9: Waiting Until Late in Life to Make Major Estate Planning Changes — Robert Indiana
Late changes can be valid. They can also be harder to defend.
The Robert Indiana estate planning story offers an important lesson about making major changes late in life.
Indiana was the American artist best known for his iconic LOVE image. He died at his home on Vinalhaven, Maine, in May 2018 at age 89.
Indiana had an estate plan before his final years. But important changes followed.
Robert Indiana’s Estate Planning Changed in 2016
Indiana signed a will in 2013 that contemplated using his property and artwork to support a foundation associated with his legacy.
In May 2016, he signed a new will. The new will left his estate to the Star of Hope Foundation, a charitable organization created to preserve his artistic legacy and his Vinalhaven home. See Morgan Art Foundation Limited et al v. Brannan.
At about the same time, Indiana gave his longtime caretaker, Jamie Thomas, broad financial power of attorney.
Those decisions later received significant scrutiny.
A day before Indiana died, the Morgan Art Foundation filed a federal lawsuit involving Thomas and art publisher Michael McKenzie. Among other things, the lawsuit alleged that Indiana had become isolated and that others had improperly exploited his artwork during the final years of his life.
Those were allegations. The parties disputed them.
But the circumstances surrounding Indiana’s final years helped produce years of litigation over his artwork, intellectual property, business relationships, and estate.
Why Late-Life Estate Planning Can Create Problems
There is nothing inherently wrong with changing an estate plan late in life.
People should change their wills, trusts, and powers of attorney when their circumstances or wishes change.
The problem is evidence.
Imagine that an 85-year-old client changes a plan that has existed for many years. The new documents give substantial authority to someone who has recently become important in the client’s daily life.
The change may accurately reflect exactly what the client wants.
But after the client dies, other people may ask questions.
Was the client capable of understanding the change?
Did the client act independently?
Who selected and contacted the lawyer?
Was anyone else present during the discussions?
Why did the client change the earlier plan?
Did the person receiving new authority participate in the process?
Those questions become much harder to answer after the person who signed the documents has died.
The Robert Indiana Estate Planning Lesson
Good estate planning is not simply about signing documents.
It is also about creating a reliable record of a person’s wishes.
That becomes especially important when a client makes a significant change later in life.
An attorney may want to meet privately with the client. The attorney can document the reasons for the change and the client’s understanding of its consequences. In appropriate circumstances, additional evidence of capacity or independent intent may also be useful.
The goal is not to make late-life planning more difficult.
The goal is to make the client’s wishes easier to defend.
What Happened to the Robert Indiana Estate?
The litigation surrounding Indiana’s legacy continued for several years. (Portland Press Herald).
In 2021, Indiana’s estate, the Morgan Art Foundation, and Thomas reached a settlement that resolved a substantial portion of the litigation. The terms were not publicly disclosed.
Separate disputes involving the administration of the estate also followed. In 2022, the Maine Attorney General announced a settlement of claims involving fees paid by the estate. The Attorney General reported that professional and fiduciary fees associated with the litigation had exceeded $10 million by the time of the settlements.
That provides another estate-planning lesson.
Litigation over a person’s intentions can consume enormous resources that might otherwise pass to the people or organizations the person wanted to benefit.
Robert Indiana did have an estate plan.
The better question is whether some of the controversy surrounding his final years might have been reduced if his intentions, relationships, and late-life planning decisions had been established earlier and documented more clearly.
Late-life estate planning is sometimes necessary. Waiting until then to make major changes can make an otherwise valid plan much harder to defend.
This article discusses publicly reported information concerning Robert Indiana and his estate for educational purposes. Many of the claims surrounding Indiana’s final years were disputed, and allegations described in litigation should not be treated as established facts.
How long has it been since you reviewed your estate plan with an attorney?