If there is ever a time to be 100% clear, bold, and direct, estate planning is one of them. Whether you are making a simple will or a detailed living trust, your words should leave no room for confusion, uncertainty, or ambiguity. Any time an “hhhmm” or a “maybe so” arises from an estate planning document, problems may be on the horizon.
In estate planning, it is always better to include more information and detail than to leave room for interpretation. If any part of a will or living trust is unclear, there may be a family member, heir, or benefi ciary who will raise questions about it. Unhappy heirs or benefi ciaries in particular will look for opportunities to challenge and cast doubt on common interpretation.
Here is an example of an estate plan that opened the door to court-mandated mediation: “If my son gets off of drugs within three years of my death, he can receive an inheritance of $55,000”. Hhmm. Suppose the son goes to rehab for two weeks and comes out clean? Is he “off drugs”? Technically yes, but will he still be off in a month? In this estate plan, better wording would have been “If my son gets off drugs within three years of my death and tests negative for drugs for one year, he can receive an inheritance of $55,000.”
In the next example, a grandmother intended to leave an inheritance to her grandchildren, including Kenny Johnson Jr., and nothing to her children. Her wording, however, led to a lengthy, expensive court case: “Luther Wallace, James Wallace, Beth Johnson, Kenny Johnson, and Sean Johnson shall each receive an inheritance of $20,000.” (Actual names have been changed.) Unfortunately for her, Grandma forgot two little letters: Jr. Because of this small missing detail, Kenny Sr. took this opportunity to claim that Grandma (Mom to him) had included him in the benefi ciaries. He went to court and was awarded part of the inheritance.
Wording, however, is not the only reason the “maybe so” issue comes up. Sometimes disgruntled heirs claim that the person making the living trust or will was not of sound mind when they created the document. They’ll claim, “Granddad was in the hospital on strong medications, he meant to leave me more than he wrote down,” or “Auntie was struggling with dementia before she passed, that’s why she forgot to write my name in her will.” Hhmm... was Granddad in his right mind? Was Auntie in hers? Yes, no, or maybe so! This is why it is best to do your estate planning while you are still in your right mind... or at least while everyone thinks you are!
© 2019 by Marlene S. Cooper. All rights reserved. (Marlene S. Cooper is celebrating 40 years of practice! Her practice is focused entirely on estate planning, estate administration and probate. You may obtain further information at www.marlenecooperlaw. com, by e-mail at Marlene@MarleneCooperLaw.com, by phone at (626) 791-7530 or toll free at (866) 702-7600. The information in this article is of a general nature and not intended as legal advice. Seek the advice of an attorney before acting or relying upon any information in this article.