Last week a client expressed grave concern that her children would fight over her property once she passed on. Her basic question which I hear repeatedly was whether I could add provisions in the Last Will and Testament (LWT) to avoid that possibility. The answer is most definitely – “yes”.
Here are a few pointers to consider when contemplating the preparation of your LWT.
1. How Do I Prevent the Kids from Fighting over My Property? – Remember when your kids hit the “terrible 2’s” and would throw tantrums if they didn’t get their way? Well – old habits are hard to break and can, unfortunately, recur during the probate process. Sadly, I have seen the children of clients “lawyer up” over family heirlooms or tattered wedding pictures! The result is not only the loss of needless dollars spent on lawyers but the onset of family conflict which can cause irreparable harm. Not surprisingly, the last time some kids speak to each other is on the way out of the courtroom.
This can all be avoided by having your lawyer include a “No Contest” clause in the LWT. This provision imposes a “death penalty” of sorts with regard to the claim of any beneficiary once an objection to the LWT is made. Whether the claim is well-intentioned or divisive (the usual case), the language makes clear that if a beneficiary contests any provision in the LWT, they forego any distribution whatsoever. These provisions are enforceable and properly confer the golden goose egg on any kid selfish enough to question the decisions that you made regarding your estate.
2. How Do You Split the Heirlooms, Furniture, and Jewelry? – It’s relatively easy to add language which distributes specific property easily defined like your homestead or vehicle. But what is the best way to decide who gets the diamond ring vs. the gold cross or bracelet? This issue is often overlooked in the drafting of an LWT and can lead to unnecessary conflict which can be avoided with proper advance planning. Although lawyers have different strategies to deal with this issue, I have found that the easiest approach is to identify the beneficiaries who are to receive the property (for example, “your surviving children”), but grant the power to decide “who gets what” to a third party. In a recent LWT, the client was certain the kids would fight over the jewelry and thus empowered one of her children who was the most mature of the group to decide which kid would get the bracelet vs. the antique desk vs. the diamond ring. I made sure that the language was clear that the distribution decision of the selected beneficiary was in his sole discretion and could not be questioned after the fact. Also – the “No Contest” clause discussed above, would certainly deter any attempt to question a distribution decision. The third-party can also be a non-family member or even the executor.
3. What about those firearms? – Yes – this is Texas and we’re proud of our firearms! You want to give extra thought as to the recipient of firearms and describe the personal property in exacting detail so that your intent is clear. In a recent situation, a client wanted to bequeath multiple firearms to grandchildren but was unsure whether they would have the maturity to receive the same when the time came. The solution is a variation of the above technique, i.e., allow a third party to make that decision. However, I typically add language that not only allows the third party to decide who receives a particular firearm but whether they will receive this potentially lethal gift at all.
4. Do I have to Spill the Estate Beans? – Absolutely not!! My usual advice is to not discuss the contents of your LWT with your kids once it is executed. In almost every situation I have encountered, at least one of the kids is upset by your estate decisions. Hey – you can’t please everyone. The key is to remember that the LWT is about “your” decision. You worked hard your entire life to acquire your property and the decision as to the recipients thereof belongs to only one person!
5. Can I write a note to one of my kids to change my estate decision after the LWT is signed? – You can – but that is usually a horrible idea as it could be viewed as an amendment to the existing LWT and lead to a protracted court battle in probate. If you want to change a term simply call your attorney for advice. It is typically a simple and inexpensive process to amend your LWT.
BOTTOM LINE – You can avoid family conflict and aggravation by considering some of the strategies outlined above. Discuss these ideas with your probate attorney and move on to the best years of your life!