Protecting Your Legacy: Preventing Estate Disputes Before They Begin

When Family Harmony Meets Estate Reality

Lawyers who engage in probate litigation frequently encounter variations on this theme; Homer and Marge are married for 40 years, but it is a second marriage for both. Homer had three young children ages 3 to 6 with his deceased wife. Marge had one young child, Lisa, age 2, from her prior marriage that ended in divorce. After ten years of marriage, they have one daughter together, Maggie. Homer, Marge, and their five children live as one big happy family. The children from previous marriages cannot remember any other parents. Homer is their dad and Marge is their mom. Homer has a successful stone masonry business, and they live frugally. They have $2.5 million in assets when they retire. Sadly, Homer dies first of silicosis. Marge becomes sole owner of their $2.5 million in assets, which are in a joint trust.

When Vulnerability Creates Opportunity

Not long after Homer’s death Marge begins showing signs of her age and symptoms of dementia. Maggie, who has always been the family ne’er do well, divorces her third husband and moves in with Marge to “help her.” Before long, Homer’s three children noticed that it is increasingly difficult to get Marge on the phone. When they do manage to speak with her, Maggie is always hovering in the background. If they try to visit in person, Maggie acts like it is a major imposition or claims that their visits stress Marge. Because Maggie lives with Marge, they can never visit without Maggie being present. Maggie being 13 years younger than the youngest of Homer’s children, was never that close to her older siblings. Maggie starts saying things like “Marge is not your mother. You are not family. Marge’s only family are me and Lisa.” Before long, Maggie is showing off the new car that Marge gifted her along with expensive purses, clothing, and jewelry.

The Estate Shockwave

Upon Marge’s death, Homer’s three children discover that all of what are now Marge’s assets will pass solely to Maggie and Lisa. They are completely cut out. Their only recourse is to sue their half-sister for undue influence.

A Familiar Pattern in Modern Families

The other variations on this theme include, Mom dies first. Dad meets a new woman and remarries. The second wife ends up with everything after 5 years of marriage and leaves it all to her children. Mom and Dad have separate trusts, but Mom uses her powers as the sole successor trustee to empty her late husband’s trust and transfer all the assets to a trust that has been rewritten by “the golden child” to favor only the golden child. Frequently, the only glue holding your children together is you. Once you are deceased or too incapacitated to control them, the long knives come out. But often it is too late to do anything by then.

Litigation Is a Last Resort, and a Costly One

Although lawsuits are available to remedy such situations, they are rarely satisfactory solutions. They are expensive, time-consuming, and not always successful. The better course is to do everything you can to protect your estate against being looted after your death. The way to do that is proper estate planning that goes well beyond the typical wills and trusts.

Strategic Estate Planning Solutions That Work

Couples should consider separate trusts that become irrevocable upon death with limited or no power of withdrawal to prevent the survivor from emptying the trust. A professional successor trustee can provide oversight to prevent shenanigans. Alternatively, you can require a joint trustee or trustees to serve with the surviving spouse. A child from a previous marriage being one sensible approach. The fees for a professional trustee are probably cheaper than litigation. This still leaves the possibility that the surviving spouse will use their separate trust to disinherit family. A contract to make a will/trust can memorialize an agreement between the spouses that all their children are ultimately intended to inherit all their assets. Videotaping the signing of your estate planning instruments can allow you to testify beyond the grave while you are alive, well, and in possession of all your faculties. You can explain your intent and not leave it to be discerned after your death.

Proactive Planning Protects Your Legacy

You should consult with a competent estate planning lawyer willing to take the time to ensure your wishes are followed. Schedule a Legacy Protection Consultation