The Harmonious Family that Won’t Fight?
Jul 01, 2020 01:30PM
By Jeffrey Hall
Jeffrey S. Hall, MBA, CPA, Esq.
The Harmonious Family that Won’t Fight? The Outcome May Surprise You
By Trust/Estate Attorney Jeffrey Hall, CPA, Esq.
Most families are happy families. They get together for holidays, share laughs, and tell stories. Everyone gets along and enjoys each other’s company. Then, the matriarch or patriarch dies. Suddenly, years of pent-up resentment and hurt feelings bubble to the surface, and the once happy family is now embroiled in litigation over the decedent’s estate.
When everyone is alive and happy, it is easy to think that nothing will break a family apart. Many people think that since everyone is getting along, estate planning is not needed because everyone will look out for one another and do what is fair. However, it is crucial that you have a properly prepared estate plan. Failing to plan not only takes all of the control out of your hands but can also leave hurt feelings and possible confusion over what your true wishes were. This confusion will force family members to the only source able to remedy the misunderstanding: the probate court.
While a lack of planning can lead to disastrous consequences, poor planning can be just as harmful. Documents that are vague, improperly prepared, or not up-to-date can lead family members to challenge them. If the documents are not clear, family members may have differing opinions as to the true intention of the decedent. This is especially unfortunate for those with a trust. One of the primary reasons to have a trust prepared is to avoid court involvement.
If your documents are up to date and clearly state your intentions but you worry that your decisions may displease your family, you do have the ability to include a no-contest clause that may prevent or limit challenges to your will or trust. A no-contest clause is a provision that states that if a person contests your will or trust—whichever document contains the clause—and is unsuccessful, they will receive nothing. However, their effectiveness can vary from state to state, so if you think your family might contest your wishes, it is incredibly important to seek the help of an experienced estate planning attorney.
One common situation where contests can arise is when someone is left out of the will or trust. If you want to intentionally disinherit a family member, consider leaving them a nominal amount at your death and using a no-contest clause. By doing this, if the contest is unsuccessful, the family member has something to lose. This may discourage them from contesting your wishes in the first place. However, as previously mentioned, you need to work with an experienced estate planning attorney to make sure this strategy is the best one for you based on your state’s law and your family situation.
As an alternative, if you are concerned about a beneficiary receiving a sum of money outright because of creditor issues, spending habits, etc., you do not need to disinherit them. By utilizing a discretionary trust, you can set aside money for the individual that is distributed to them when and how you determine. Leaving money to a family member does not have to be an all or nothing decision.
Regardless of your family situation, it is incredibly important that you have a well-drafted, up-to-date estate plan in place. Will or trust contests can be very costly and can quickly drain the estate or trust, which means your loved ones will end up with less than you intended. We can assist you in creating an estate plan that will ensure your wishes are carried out and harmony can be maintained within your family after you are gone. Call your neighborhood estate planning attorney, Jeffrey Hall, at (925) 230-9002 to schedule an appointment or visit his website at www.HallLawGroup.com. We are a veteran owned --veteran friendly law firm.
Disclaimer: This article is not intended to be relied upon as legal advice nor the establishment of an attorney-client relationship.