1st Mar 2015

Chicago Cubs legend, Ernie Banks (“Mr. Cub”), passed away on January 23, 2015, at age 83. His death certificate indicates that he suffered not only from cardiac arrest but also dementia. It appears that Banks’ friend and caregiver, Regina Rice, and his estranged wife and children are in for a long battle over Banks’ Will and estate.

1.  Extra caution must be exercised when atypical or unequal distributions are part of an estate plan.

2.  The likelihood of family conflict can only be reduced through proper estate planning.

3.  Issues that may seem common or insignificant can have drastic effects on estate administration.

Banks had been separated from his wife, Elizabeth, since 2007. According to Rice, a 56-year old entertainer and owner of a talent management company, she had been assisting Banks with his affairs for more than 10 years and had a trusting relationship with Banks’ family members, all of whom resided in California.

Banks’ Estate Plan

On January 29th, Elizabeth filed a petition in Cook County Probate Court to be appointed administrator of his estate, claiming that he had died without a Will. In the absence of a Will, Elizabeth was appointed administrator of the estate.

However, on October 17, 2014, Banks had executed an estate plan consisting of a Property Power of Attorney, Health Care Power of Attorney, Will and Living Trust. According to reports, the 2014 documents not only give Rice control of his estate, but also name Rice as the sole beneficiary of the estate and trust assets. The Will was filed by Rice on February 9th and she was appointed executor of the estate.

Legal Analysis

The fact that someone of Ernie Banks’ stature did not have an estate plan that his family knew of is simply mind-boggling. In addition to his age and assets, including intellectual property rights such as his name and image, Banks had been separated from his wife since 2007 and was in the middle of a divorce. This should have been a clear red flag to his advisers to have a proper estate plan in place.1,2  For some reason, he waited until three months before his death to execute a plan.

Before the division and distribution of assets is commenced, the validity of Banks’ 2014 estate plan will be litigated thoroughly. Rice has been prohibited from selling any of Banks’ assets without court permission and has been ordered to provide a detailed accounting of estate assets. Apparently, the preliminary estimate of $16,000 did not satisfy the court. Based on Rice’s non-familial relationship with Banks, her access to his affairs and the fact that the documents were signed just months before his death and circumvented his family for Rice, the burden will likely be on Rice to refute the accusations of unduly influencing Banks into leaving his estate to her.3

In determining the validity of the Will, the court will assess whether Banks was of sound mind when he executed the Will and whether the required witnesses were present and can attest to his understanding of and willingness to sign the document. In addition to the testimonies of the individuals involved in executing the document, Banks’ mental capacity will be assessed. If he had been diagnosed with dementia, which, based on his death certificate, it appears so, then his mental capacity, as evidenced by the physician’s diagnosis as well as his other activities and public appearances, will be the key issue in court.

Avoiding Foreseeable Conflicts

According to Banks’ Will, no provisions were made for his wife and children “not for a lack of love and affection for them and for reasons best known by them.” Though reports indicate that no portion of the estate was left to them, this sentence alone is not conclusive. An individual may bequest assets outside of his or her Trust, such as naming the recipient as the beneficiary of a life insurance policy or making lifetime gifts of cash or other assets. However, with the family relationships strained as they appear to have been, Banks may have intentionally disinherited his wife and children.

The best way for Banks to have prevented the current conflict and litigation would have been to inform his wife and children of his intentions during his life. The loss of a loved one combined with the public reports of being disinherited may be leaving them with no choice but to battle the issue out in court. Instead, if Banks had discussed his wishes with his family during his life and informed them of his estate plan, this conflict may have been avoided. Additionally, having an unrelated and uninterested third party serve as trustee of the Trust would have ensured that the Trust will be administered in accordance with Banks’ wishes as reflected in the document.

When assets are being left in a manner that family members would not typically expect, communication becomes even more important. Although sharing your documents is not always recommended since you may amend or revoke them during your life, it is advisable to inform your loved ones that you have had your estate planning documents prepared and to provide the preparing attorney’s contact information to them.

It is unfortunate that the headlines concerning Banks for the foreseeable months or years will be about the battle over his estate rather than his legacy as Mr. Cub. Working with your estate planning attorney to ensure that potential pitfalls are recognized and addressed is crucial to easing the transition for your loved ones during a difficult time.4

 

Footnotes:

1.  For a detailed discussion of this issue, see Divorce and Your Estate Planning.

2.  Since their divorce was not complete, in the absence of an estate plan, Banks’ assets would have been divided half to his wife and half to his children in equal shares. If Banks’ had executed only a Will leaving his entire estate to Rice, his wife could have claimed her elective share as the surviving spouse and inherited one-third of Banks’ estate. However, trust assets are not subject to the elective share in Illinois. Thus, Elizabeth will be able to pursue Banks’ probate assets under this law, but not the assets that he transferred to his Trust prior to his death.

3.  As of January 1, 2015, an instrument that provides for a bequest of greater than $20,000 to a caregiver is void unless the recipient can rebut the presumption of fraud, duress or undue influence. 755 ILCS 5/4a. It is interesting that Banks’ Will was signed just before this law became effective and the value of Banks’ estate as reported by Rice is just under the voidable amount.

4.  For further discussion of the benefits of proper estate planning, see Your Estate Planning Goals.

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