Tom Clancy Heir in Orphan’s Court Because of Quirk in Maryland Law

Tom Clancy’s widow is hardly an impoverished street urchin. Her late husband left an estate estimated at $83 million. She is, however, bringing an action in a Maryland court to have her husband’s attorney removed as the “personal representative” of the estate.

At issue is what she says is a mistake in the will structured by Clancy’s trust and estates lawyer. She contends that a poorly constructed provision for paying estate taxes out of a family trust would needlessly cost her $6 million. Such a complaint, valid or not, might ordinarily result in a lawsuit for professional negligence. In this case, however, she is not allowed to sue the attorney who drafted the will because she is a beneficiary of the will.

Under Maryland law, only the “personal representative” of an estate can sue the drafter of a will. Six states in the nation bar a beneficiary from suing the drafter of a will, and Maryland is one of them. The rule is intended to reduce the potential for fraud and the risk that a testators intent might be misinterpreted.

In the Clancy case, the “personal representative” of the estate is the lawyer who drafted the will. As the only person with the legal authority to sue the drafter for negligence, he would have to sue… himself.

Instead, Clancy’s widow has filed a petition in Orphan’s Court to have him removed as “personal representative.” Observers say the step is highly unusual and that it is rare for a personal representative to be removed without very strong grounds.

The case highlights several aspects of Maryland’s complex trust and estates law. The provision in the will that led to the dispute involved an intricate tax planning strategy. Observers say the error may be serious, but that it is also possible that no error was made or that the error can be fixed.

There is also the question of whether it makes sense to have the same lawyer draft a will and also serve as the estate’s personal representative. There are times when this approach makes sense but, as the Clancy case shows, there can be drawbacks.

An experienced trusts and estates lawyer can advise you on the aspects of estate planning raised by this unusual case — how to structure the estate to minimize the impact of estate taxes and whom to chose as your estate’s personal representative. The Bethesda and Rockville, Maryland tax and estate planning attorneys at Longman & Van Grack have years of experience dealing with these difficult, important, and personal decisions. If you would like to discuss the best ways to structure your estate for the benefit of your spouse or future generations, contact us at (301) 291-5027 for a consultation.