When putting together your estate planning documents, it is important to consider this question: What if my beneficiaries decide to challenge my planning in court after my death? Unless your estate planning is extremely simple (i.e. no step children, no second marriages, and all your children get an equal share of your estate), then you should consider this very real possibility.
Estate Planning “Armor”
As you determine who will get what in your estate planning, there are various ways to protect your plan from attack. Like different types of armor, your defense strategies can vary depending on your situation. There are traditional ways to handle the dissemination of the information found in your estate plans and there are newer thoughts to consider.
Estate Planning Communication
First, let’s address communication concerning the content of an estate plan. Traditionally, it has been common practice to create an estate plan, hide it away, and have it presented to the family after your death. If you are not leaving equal shares to all your children, and especially if you are disinheriting a child, this method of communication is abrupt and often results in a challenge to the will.
Consider communicating these intentions prior to your passing. If one child has received much more financial assistance during your life than others, and you intend to reduce their inheritance because of this, consider letting them know now exactly how this will play out in the future. This method can reduce ambiguity, because your children or other beneficiaries can ask you direct questions concerning your planning. It is also much more difficult for a child to challenge your planning based upon diminished mental capacity or undue influence when your plans are openly discussed while you are living.
The traditional method of keeping your planning under wraps until your death may be the best route if you believe that your decisions are likely to make one beneficiary very upset and you believe that beneficiary will fight your decision while you are living by attempting to manipulate you to change your mind. Standing strong against an angry child may be especially difficult for a divorced or widowed parent of an extremely dependent adult child.
Estate Planning Documentation Availability
Next, let’s talk about the distribution of your planning documents. Often, fighting over an estate is less about a challenge to your last wishes than about an inability to prove what those last wishes even are, simply because no one can find your documents. Other problems can occur when the trustee or executor is unwilling to share copies of the documents with other beneficiaries. While this is not legal, we know it happens all the time.
Consider providing a digital copy of your planning documents to all your executors or trustees and all your beneficiaries before your death. If you are uncomfortable with this, consider texting a photo of your estate planning lawyer’s business card, and ensure that your estate planning attorney actually keeps a digital copy of your documents indefinitely. Most children would appreciate the peace of mind of knowing that you have a plan. If your estate planning lawyer works in a firm with only one attorney, be aware that that individual probably does not keep copies. If your lawyer passes away before you do, those backup documents likely will not be available for you.
You may not want to share a digital copy of your documents if you believe that your children will comb through your documents making suggestions and corrections, even though your children are not qualified estate planning attorneys. It is so important that your beneficiaries can access your planning documents after your death, and there are many ways to ensure they are accessible. We recommend that you think through this and plan in advance to make the transition as easy as possible.
Disinheritance
Sometimes parents choose to disinherit some or one of their children. There are many possible reasons people do this, including trying to be more fair or equal, taking care of someone who needs more help than others, or rewarding a child who provided care at the end of life. If you are considering disinheritance for one or more children, it is important to consider the fact that this is one of the most common reasons that a child challenges a will.
If you still decide to disinherit a child, consider providing a gift to the children (your grandchildren) of the disinherited child, with a no contest clause that will disinherit the grandchildren if the child challenges the will. Most people would reconsider contesting your wishes with the knowledge that it will financially harm their own children.
Additionally, in the event that the disinherited child received many lifetime gifts, be clear in your communication that this child is not in fact being disinherited, but that they received their inheritance much earlier, during your lifetime.
Don’t Delay Your Estate Planning
With all of that being said, if you never get around to doing your estate planning, you can expect many different family problems in store for your beneficiaries after your passing. We believe that much of estate planning needs to be done on a case by case basis. Seek out a qualified estate planning attorney and ask them about your unique situation. If your attorney is experienced, he or she will be able to provide you with sound advice for protecting your planning from legal attacks after your death.
To listen to our full podcast about estate planning armor, click here.