As you may have seen in the news recently, the only child of Elvis Presley, Lisa Marie Presley, has died and the validity of her estate planning documents looks headed for a battle.
There is currently a dispute around the validity of amendments made in 2016 to Lisa Marie’s 2010 ‘Living Trust’. Lisa Marie’s mother, Priscilla Presley (ex-wife of Elvis Presley), is the family member arguing these amendments are not valid.
The amendments included removing Priscilla Presley and Lisa Marie’s former business manager, Barry Siegel, as the co-trustees and Priscilla claims there are several issues with the authenticity of the amendment, such as:
- Priscilla’s lawyer alleging she was not notified of the changes, even though it was a requirement of the Trust;
- Priscilla’s name was spelt incorrectly in the documents;
- The amendment was allegedly not witnessed or notarised; and
- An unusual signature by Lisa Marie that did not match her previous signatures.
Taking this into account, when making amendments to any of your estate planning documents, it is important to make sure your documents are still valid.
What is a ‘Living Trust’?
A Living Trust, also known as an ‘Inter Vivos Trust’ or a ‘Discretionary Trust’, is essentially a type of trust that serves as a Will which you set up during your lifetime. Your assets sit in this trust, whereby you can control the assets while you are alive by appointing yourself as the Trustee. However, upon your death, the Trust continues to operate with the appointment of a new Trustee, if it is set up correctly.
The difference between a Will and a Trust is that a Will only takes effect upon the death of the Will-maker. However, Trusts can operate during the Trustee’s lifetime and continue after their death. A Trust gives a trustee the right to legally hold and manage the assets within the trust for the benefit of the beneficiaries named under the Trust. Essentially, the trustee has the main power and control of the trust and the beneficiaries receive benefits from the trust’s assets that the trustee distributed to them.
Other important roles to look out for in a Trust is the ‘appointors’ and from an estate planning perspective, it is crucial to have someone else to step in if something was to happen to them. The appointor is someone who has the power to change the trustee and essentially has ultimate control over the trust as they can even appoint themselves as the trustee. Therefore, it is very crucial that your appointor is chosen carefully and with a lot of thought.
How to avoid legal battles and messy administration of your estate?
The simple answer to this is, be prepared and plan properly. Estate planning that is correctly drafted and executed will avoid the messiness of what is happening in the Presley estate.
Estate Planning done well involves for more than the preparation of a well drafted will. We tend to advise our clients against amending their Wills with additional documentation, such as the use of codicils. A codicil is a document that is used to amend your existing Will, not to replace it. The risk of doing a codicil is that it may become separated from the Will, therefore not amending anything in the current Will but it also runs the risk of misinterpretation and poor execution. Similarly, to what happened in the Presley estate whereby the amendment to the trust was not witnessed, if your codicil is not witness or if you create a new Will to revoke your previous one and it is not witnessed correctly, it may not be valid. Making your estate plan and doing it correctly now, can save money and time after your death and help your loves ones avoid any potential conflicts and financial hardship. It is always recommended to review your estate planning documents every 3-5 years and instead of making hand written amendments or creative codicil’s, the safest option is to always create a new Will that is executed properly.
Further, when dealing with complicated and wealthy estates, it can be an overwhelming task for loved ones of the deceased. People generally appoint their next of kin to be the executor or trustee of their estate. However, not everyone will be up for the task especially if they are going through the grief of losing a loved one. No matter how complicated or simple the estate is, the executors’ duties are the same and they must complete tasks within a timely manner. For more information on executor duties, please see here.
When creating a trust or any type of estate planning document, it is essential to a consult a legal advisor to ensure the trust is valid and achieves your objectives. Contact one of our lawyers today on 9375 3411.
About the Author: Ida obtained her Bachelor of Laws at Murdoch University in 2020, after graduating with a Bachelor of Criminology. Ida was admitted as a lawyer in 2022 and has worked in the Wills and Estates area since starting her career.
