29th Jan 2011

Elizabeth Edwards, who passed away on December 7, 2010, left a Will which made a significant omission.  The Will, signed on December 1, 2010, just days before her death, makes no mention of her estranged husband and former presidential candidate, John Edwards.  John and Elizabeth Edwards separated in 2010 but had not filed for divorce at the time of Edwards’ death.

The Will was filed in Orange County Superior Court in North Carolina on December 22nd.  The document is a Pourover Will which names Executors and Guardians, but reveals minimal information regarding the distribution of her estate.  Instead, the Pourover Will “pours” the decedent’s assets into his or her Trust, which provides the terms of distribution.  Unlike a Will, a Trust document is a private document that is essentially a contract between the Grantor and Trustee.  Edwards’ Will pours all of her assets into a “Revocable Declaration of Trust” which the Will indicates was established on December 2, 1992, but was amended and restated prior to the execution of her last Will.  By establishing a Revocable Living Trust and utilizing a Pourover Will, Elizabeth Edwards prevented her desires for distribution from becoming public information.

Additionally, the Will (a) states that Edwards’ daughter, Catharine (“Cate”) Edwards, an attorney, is the acting Trustee of the Trust, (b) leaves all of Edwards’ personal property to her children rather than John and also (c) appoints Cate as the Executor of her estate and the Guardian of any minor children.

Edwards’ omission of her husband’s name from her Will indicates that she may have left all of her assets to her children by way of her Trust as well.  However, if this is the case, John Edwards would have the right to claim his “elective share” (one-third of Edwards’ estate under North Carolina law) if he wishes to do so.

While privacy is only one reason to establish a Revocable Living Trust, it is a key feature that can facilitate a peaceful passing of your estate.

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