Planning With an Aim Towards Building Unity
By Cory Howes
A contested will or trust can wreak havoc on families. The conflict can result in possibly irreparable resentment and loss of familial communication. Old rivalries and disputes can resurface during the trying time that occurs after the death of a loved one, especially a parent. But careful estate planning can help you substantially reduce the risk, or even avoid this problem entirely.
Let’s take a look at a few of the ways you can build your estate plan to minimize family conflicts after you’re gone.
Keep your plan up-to-date: An up-to-date estate plan can help you preserve family unity after death or in the event of incapacity. Even if you have put an estate plan in place in recent years, estate planning is an ongoing process and needs attention at regular intervals. An out-of-date plan can become misaligned with your goals, new laws, and policies, rendering it less effective and more likely to generate conflict (the last thing you want).
Select key individuals in your plan: You can give certainty to your family and make your wishes easier to carry out by selecting the right people as your key players in carrying out your estate plan. Make sure that you’ve thoughtfully selected the right people to carry out your estate plan. Here are a few of the key individuals you’ll have to select:
- Successor Trustee – This person will manage your trust’s assets when you are unable to do so.
- Executor – This person is appointed in your Will to manage your probate estate if one is needed. In many cases, you may select the same person as your successor trustee. However, if you don’t, remember that your executor must work closely with your successor trustee to ensure that everything is handled smoothly and in a timely fashion.
- Healthcare Agent – This person is authorized to communicate with your medical providers and make medical decisions if you are unable to do so.
- Financial Agent – This person is authorized to make financial decisions on your behalf for any property not held in your trust. They will likely need to work closely with your successor trustee, or you may designate the same person to serve in both roles.
Share your wisdom: By sharing your stories and wisdom (through ethical wills, intent letters, personal stories, and videos) you can help your family understand the legacy you want to leave so that the wealth you’re leaving doesn’t become a distraction or point of contention.
Don’t try to DIY: While it might be tempting to cut corners and take your estate plan into your own hands, taking a do-it-yourself approach is never wise. This sets the stage for potentially inadequate planning, which increases the likelihood of will or trust contests and will likely mean your estate isn’t distributed how you’d like it to be in the end. Let your estate planning attorney do the heavy lifting — we’re always here to help.
Be clear about your intentions: Are you planning on giving more of your total assets to one child than the others? Or are there other ways in which your estate planning goals may upset some of your beneficiaries (or those who aren’t beneficiaries)? It can be a very tricky subject to broach, but if you foresee hurt feelings, consider being as clear as possible about your wealth distribution plans with those individuals. This will limit the potential for confusion and disagreement down the road. It may – or may not – make sense to explain this to your family. But, it’s always incredibly important to let us know the reasons so we can develop a rock-solid legal strategy for your goals.
Consider discretionary or incentive trusts: If you want to build protections around the inheritance you leave your children, or you have a child or other potential beneficiary who struggles with addiction, mental health problems, overspending, or other conditions that could hinder their ability to use their inheritance in a healthy way, you might want to consider a discretionary or incentive trust. With a discretionary trust, the trustee has the sole authority to make distributions from the trust, thereby preventing creditors or divorcing spouses from accessing the trust assets. Depending on state law and how the trust is designed, your children may even be able to be the trustee of their own trust. With an incentive trust, you can control the disbursements based on your beneficiary meeting certain requirements — such as attending a treatment program or enrolling in higher education. These types of trusts can help you treat each child fairly by taking into consideration what is best for each child’s unique situation.
Contested wills and trusts can tear a family apart, and they can also be time-consuming, costly, and embarrassing for the family that remains. If someone who feels slighted by your estate plan can convince the court that your will or trust is invalid, chaos can break loose and your intended beneficiaries can lose their inheritances. Typical reasons a family member might use to say your estate plan is invalid are that it wasn’t signed, you didn’t have the capacity to make the estate planning decisions you made, the documents were fraudulent, or that you were pressured or influenced to sign documents.
Let us help you make sure that none of these events unfold. We’re here to guide you every step of the way through creating and maintaining a timely, robust, and strategic estate plan. Please do not hesitate to contact me to help make sure your plan is current and includes all the necessary provisions to keep a contest from occurring in the future.