Illustration by C[yrus] Fosmire and/or Howard E Smith which appeared in McClures Magazine with The Griswold Divorce Case by Frederic Taber Cooper, representing a man dictating to another an incriminating note, circa 1910. In the public domain in the United States
We will all die. It is merely a question of when. If we are lucky and smart, we will have some assets to pass onto loved ones after we die. But families, all families, have their quirks and difficulties. Poor family dynamics inevitably emerge upon the death of a loved one where beneficiaries are concerned. And these family dynamics can lead to protracted litigation. However, some of these dynamics can be eliminated or alleviated if we use the proper estate planning tools.
Estate planning attorneys are very knowledgeable regarding the process of probate and how to avoid probate. This question of whether to probate an estate or whether that estate should pass via trust remains a fundamental one. The poorer the family dynamics, the more important it becomes that a court oversee the disposition of an estate. That may mean using a will and not a trust as the primary dispository document. This may be mitigated by the tax consequences and size of the estate at issue.
If an attorney is made aware of family dynamics, they attorney can make recommendations regarding tools to avoid protracted litigation post-death. Such recommendations can include a third party to handle distribution to avoid infighting; or the use of “no-contest clauses” to deter a court battle.
Many estate planning attorneys will have clients fill out forms that address the question of assets and their value, children, marriages, divorces and the like. In some ways, these forms expedite the planning process. From these tools, the attorney is likely able to gather crucial information about the size of the estate and likely tax consequences upon death.
These forms are less likely to address critical information such family dynamics or other special needs such as whether a potential beneficiary is in need of special help such as a special needs trust or a guardianship. This does not mean that they are not attuned to the special needs that clients have.
An attorney will usually ask questions of a more sensitive nature during a consult with the client. It is in the client’s best interests to be forthright and honest regarding all matters that the client believes are important and will affect the disposition of property upon the client’s death. If the attorney doesn’t ask, the client must be willing to state their concerns openly with the attorney.
In the reality of an attorney’s practice, he or she will only have a specified amount of time to spend with any client before the next appointment. It may take more than one appointment for all matters to be resolved to the client’s satisfaction. Do not be afraid to ask for more time and do not be afraid to ask questions of an attorney.
Most problems in estate planning occur not from poor drafting of documents, but from crucial information being withheld, often in ignorance. If you as a client feel the matter is important, then it usually is. Do not be afraid to raise that issue with an attorney. An attorney would much rather spend time with a client now than spend time litigating the matter later. Remember that you are hiring a person with expertise to help you. Make sure that you address your concerns fully and make sure that you understand fully the product that you are buying. In essence, talk to your attorney.
copyright/all rights reserved Audrey Howitt 2015