In an utterly predictable fashion, now that the media has calmed down about his overdose, they have turned their attention to Philip Seymour Hoffman’s will. I can just picture the eager little interns running down to the Manhattan Surrogate Court (which we call the Probate Court here in Massachusetts) to get a copy of his will, which, like all wills, is public record.
The stories seem to concentrate on 2 things – that he left instructions for his children’s guardian about where he wanted his son to live, and that he never updated his will after his daughters were born.
It is important to leave instructions for your children’s potential guardian, but these do not have to be in the will itself and I would never recommend that my clients do that. I encourage them to write a letter of intent for their guardians outlining their wishes for their children and their upbringing. This letter remains private unless and until it is needed. And even then, it remains private within the family and is not submitted to the Court along with the will. In addition, as interesting as it may be to some where Mr. Hoffman wanted his children to live, that decision remains in the hands of their mother. The instructions for the guardian don’t come into play here because they don’t have and don’t need a guardian – they have a living parent who will continue to make decisions about their lives as she has been.
The other thing the articles (and the people in their comment sections) seem to focus on is that his will wasn’t updated after the birth of either of his daughters. This does not mean that they have been disinherited. Most, if not all, states have a “pretermitted child” statute, which means that children who have been accidentally left out of a will, will inherit the same amount they would have if the parent had died without a will. If a parent wants to disinherit a child, they must specify in the will that they are being disinherited or receiving nothing from the estate.
In addition, I draft my wills and guardianship nomination documents to include “any child or children hereafter born to or adopted by” my clients. This makes sure that those children are included without my clients needing to stop by my office on their way home from the hospital to change their will.
While I find articles like this a little bit creepy, I think they do remind people of the importance of having a plan in place to protect ourselves and our families, and provide a way to bring up the topic with someone who may have been reluctant to discuss it.