First, the fact that Whitney relied on a will — signed back in 1993 no less — instead of a living trust is troubling. We’re talking about the woman who signed the largest recording contract in history! If anyone should have thorough estate planning, including a living trust, it was Whitney.
Why? Wills have to pass through probate court to be effective, which makes them public record. That’s why information about the contents of her will is all over the internet. Inside Edition, for example, posted a copy of the will, here. In addition to being public, probate can be expensive, time-consuming, and a breeding ground for family fights.
Living trusts, on the other hand, when properly-used, keep matters private and outside of probate court. Most people with even modest estates are better served using living trusts, instead of a will. It’s frankly rather shocking that Whitney only had a will.
After signing her will in 1993, Whitney made one change, at least. She signed at least one codicil (an amendment to the will), dated April 14, 2000. There have been reports of a second codicil in 2004, but that has not been made public. The order from probate court which admitted the will only refers to a single codicil, not two codicils, which would normally be the case if there were in fact multiple codicils.
When Whitney signed the codicil, she named her mother, Cissy Houston as the executor, replacing the person named in her original will, the attorney who prepared that will. When the attorney who created a will also is named as an executor, it sometimes raises red flags. Whitney obviously had second thoughts about who she wanted in control of her estate, and that’s not a bad thing. Interestingly, Cissy Houston did not end up serving as executor, however. Instead, Whitney’s sister-in-law, Pat Houston, was appointed by the probate court.
So what else is surprising about the will? It did create a trust, but not a living trust as most people would do. Rather, the will calls for Whitney’s assets to be held in trust for her daughter, Bobbi Kristina, but Whitney did not create an actual trust while she was alive. This is called a testamentary trust, because it is created by the will, not during life. A testamentary trust can still function like a living trust, but it doesn’t have the advantages of avoiding probate court and privacy, which a living trust would have.
But, you certainly have to give Whitney credit for thinking that aspect of her estate plan through. As we wrote previously, without employing a trust, Whitney’s daughter would stand to inherit all of the money immediately, because she is 18 — legally, an adult. By using a trust — even a testamentary trust — Whitney was able to space out the distributions. So Bobbi Kristina will inherit 10% at age 21, another one-sixth at age 25, and the rest at age 30. There are provisions to allow for the money to be spent by independent trustees (Whitney’s brother and sister-in-law) for Bobbi Kristina’s benefit, for things like education, buying a home, starting a business, having a child, and more.
What else is surprising about the will? It was signed on Feb. 3, 1993, several months after Whitney’s marriage to Bobby Brown. In most states, a spouse has rights to elect against his or her share of the will and receive more than what was left to him or her; sometimes one-half of the estate, or even more. Georgia’s laws do not permit this (except for a limited allowance to the spouse for a limited period of time). But, Whitney created the will in New Jersey and the law where she lived at the time of her death would control this.
In other words, if she had still been married to Bobby Brown, even though she wanted everything to pass to Bobbi Kristina, Bobby Brown would still have the right to take a large part of the estate. This could have been avoided (at least in many states) with a living trust.