All of the major news providers (USA Today, CNN.com, Huffingtonpost.com, etc.) reported that Elizabeth’s will has been made public and she has cut her estranged husband, former vice presidential candidate John Edwards, out of her will.
Indeed the will, which was recorded on December 22, 2010, has been made public. What is newsworthy here is that when a person dies, the original will must be filed in the county in which the person resided at the time death. In Michigan, it is a misdemeanor if you possess an original will and fail to record it. Once recorded the will becomes public record. It is important to understand that the only thing that is public record under a proper estate plan is the will. In a properly prepared estate plan, the distribution scheme is not contained in the will, but the trust. [For a quick synopsis of the meaning of various estate planning documents see our Estate Planning web page].
One of the reasons people form a trust is to avoid probate. One of the important aspects of avoiding probate is to keep all the affairs private. Probate is a court case and is therefore a public record. Generally, the administration of a trust does not occur within a court case and is therefore private. Many people choose to have trusts, for the sake of privacy.
When a person chooses an estate plan with a trust they will also have a will to take care of items that may not have properly been funded into the trust, such as personal clothes, jewelry, furniture, etc. A will done in connection with a trust is commonly referred to as a “pour-over will” because all the personal assets not specifically distributed in the will are poured into the trusts. It is the trust, therefore, that will ultimately have the distribution scheme of the decedent. This is commonly the case and was the case with Elizabeth Edwards. The news reports that John Edwards was in some way “cut” or “written out of” Elizabeth Edwards’ estate plan are simply ignorant.
Unless and until someone has an opportunity to review Elizabeth Edwards’ trust, they will have no real clue what her estate plan really entailed. This is honestly a good thing, and as it should be. Elizabeth Edwards chose to have a trust and, thus, her distribution scheme has been kept private.
The major news entities reporting that John Edwards has been cut speak more to the media than they do to Elizabeth Edwards’estate plan. Sensationalism.
With this being said, the issue of what to do when you have an estranged husband or wife is significant. It does appear that Elizabeth Edwards smartly went to an attorney prior to her passing and made her daughter the personal representative, as well as obtained proper legal counsel concerning what would or would not happen concerning her estranged husband, of this I have no doubt. If you have an estate plan and are in a situation similar to Elizabeth Edwards, where you have an estranged spouse or a recently divorced spouse, I strongly advise you follow in Elizabeth Edwards’ footsteps and go over your estate plan with your wills and trusts attorney.