Most families are happy families.
As you gather together with your family this holiday season, you probably share laughs and tell stories. You get along and enjoy being with each other and everything seems copacetic.
But what happens with the matriarch or patriarch dies? You would be surprised how, suddenly, years of pent-up resentment and hurt feelings bubble to the surface, and your once-happy family is now embroiled in litigation over the decedent’s estate.
When everyone is alive and in good health, it’s easy to believe that nothing could break your family apart. But just because everyone gets along, don’t assume that estate planning is not needed and that everyone will look out for one another and do what seems fair to you. Failing to plan not only takes all of the control out of your hands, it can also leave hurt feelings and possible confusion over what the deceased’s true wishes were. This confusion will force family members to the only source able to remedy the misunderstanding: the probate court.
Having no plan can lead to terrible consequences, but so can having a bad plan. Documents that are not up to date, vague, or improperly prepared can leave room for 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. Even those who have prepared a trust especially to avoid probate could have their estate land in court if it isn’t maintained and updated properly.
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, it may actually make more sense to leave them something in your will. By leaving them a nominal amount at your death and using a no-contest clause, the family member will have something to lose by contesting it. However, as previously mentioned, you need to work with an experienced estate planning attorney to make sure that 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. The experienced estate planning and trust administration attorneys here at Davis Law Group PC can assist you in creating an estate plan that will ensure that your wishes are carried out and that harmony can be maintained within your family after you are gone. Give us a call today to schedule an appointment.