Mark Madoff, son of the infamous “Ponzi” schemer Bernie Madoff, executed a Will in late 2007. According to the New York Post, the Will set aside assets in trust for Mark’s two children from a previous marriage and his daughter from his current marriage and left the balance of his estate to his wife. The Will also named Mark’s father as Co-Executor of his estate along with Mark’s brother, Andrew.
In 2008, Mark and his wife welcomed a son, their second child together. In 2009, Bernie Madoff pled guilty to Federal charges of fraud after being turned in to authorities by Mark and Andrew. In December 2010, Mark Madoff committed suicide by hanging himself while his two-year old son slept in the next room.
Mark’s Will was never revised during the two years between the birth of his youngest child and his own death. Consequently, Mark died having provided for his wife and three of his children, but not the fourth. Additionally, the Will left Andrew as sole Executor of Mark’s estate, since their father is in jail serving a 150 year sentence.
There are two important lessons that we must learn from the example of Mark Madoff’s Will.
First, proper drafting can be the difference between your goals being accomplished and a loved one being abandoned. Prior to his death, if anyone had asked Mark whether he intended to provide for all of his children, it is safe to assume that the answer would have been ‘yes.’ Ideally, the Will would have been drafted to provide for all of Mark’s living children as well as any children born or adopted thereafter. It is unclear why this was not done, but the flaw in drafting clearly had a significant effect on the administration of his estate.
Second, an Estate Plan should be reviewed any time your family or financial situation changes (see Newsletter #6 for an explanation of when existing documents should be reviewed). Mark’s family situation had changed significantly with the birth of a fourth child and the incarceration of his father. It is likely that a simple phone call or meeting with his attorney would have led to the attorney discovering the flaw in the document that abandoned Mark’s fourth child and correcting it before it was too late. Additionally, knowing Bernie’s situation, Mark would have had the opportunity to name an alternate Co-Executor to act with Andrew if he wished to do so.
When drafted properly, an Estate Plan can provide great flexibility for changes in family, finances and the law. However, when circumstances do change, it is wise to review the documents and have your Estate Planning Attorney confirm that your documents accurately reflect your intentions.