McGraw Law PLLC

Practicing Elder and Estate Law in Denver and Along the Front Range

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Loan Sailboat on the Ocean

Your estate plan is yours. Period. 

The intentions and desires of a person making a Will must be protected from outside pressures or influences. Ideally, open communication persists in families and interested parties are supportive of the testator’s autonomy and right to choose freely the disposition of their estate. However, no one exists in a vacuum, human imperfection often prevails, and familial pressure to please everyone can affect a person’s last wishes as effected by their estate planning documents. These dynamics can thwart a person’s internal, and arguably, true desires. 

A testator (a person making a Will) and all devisees, heirs, and interested parties on the same page can give rise to a cohesion and mutual understanding among the parties that can greatly reduce the possibility of infighting and litigation after the testator has passed. Resultant conflicts from such infighting can tie up an estate for years, drain the estate of its assets, and create discord in families that can be irreparable. As one might imagine, this idealistic cohesion and mutual understanding is not always possible. McGraw Law PLLC can help in either scenario. 

SPOT THE ISSUES: Restricted Communication, Familial Discord, and Irresponsible Parties

Restricted Communication

Degrees of openness vary among families just as it does among people. Common indicators of openness in families are free communication, the absence of fear, and assertiveness. If these characteristics are lacking in a person, or in their relations with heirs, devisees, or interested parties, an observer may do well to deduce that their estate plan may be in danger (i.e. their wishes may not be stated in their documents at all[1], accurately stated in their documents, or clearly communicated to the pertinent parties). 

Persons who lack freedom of communication, whether due to psychological or physical factors, are more susceptible to undue influence and duress. Additionally, persons suffering from diseases of the mind are more likely to find themselves unable to freely communicate, which could affect their ability to bring their last wishes to fruition. 

If restricted communication is felt or suspected, consulting with, or encouraging a loved one to consult with, an estate planning attorney who is sensitive to these issues is a good idea. The estate planning attorney should meet with the testator individually and extensively to clear the path for free communication, and thus, the true intent of the testator. Contact McGraw Law PLLC to discuss. 

Familial Discord

Familial rivalries should be cause for some concern. When the prospect of monetary gain is thrown into the mix, those rivalries most often take a turn for the worse. All too often after parents pass, siblings find themselves at each other’s throats over assets of significant value or assets with sentimental value. Sometimes, the appointment of one sibling over another to be executor or trustee can further fuel the rivalry. 

Blended families present similar issues. It is often the case that children and/or spouses from first marriages are treated differently than those from subsequent marriages. Having conversations early, frequently, and clearly is vital in situations where there may be disparate treatment between heirs or familial discord. The testator may not be around to witness the consequences of failing to do so, but their legacy is threatened in neglecting to have these difficult conversations. As the adage goes: An ounce of prevention is worth a pound of cureMcGraw Law PLLC can help testators strategize. 

Irresponsible Parties

Persons with poor spending habits, abusive spouses, addictions, or mental illnesses can create the need to be creative in drafting an estate plan. Trusts are usually the best bet in these situations. 

Trusts can protect the assets the testator wants to devise from controlling or abusive spouses and can also have very specific language concerning expenditures therefrom. This protects the assets from siphoning by heirs’ spouses or other unwanted parties as well as spendthrift heirs. Similarly, a trust can greatly reduce the chances of your loved one losing an entire inheritance to an addiction, whether the addiction is drugs, alcohol, gambling, sex, or some other compulsive behavior. 

Mental illness can also affect the ability of persons to make responsible financial decisions and appointing a trusted person or entity to meter that person’s inheritance for certain expenses is a great way to prevent a future in which a loved one with mental illness finds themselves without financial resources. A similar structure is appropriate for some beneficiaries with disabilities. McGraw Law PLLC can help in drafting trusts for testators facing these circumstances. 

Solutional Approach

In addition to the circumstance-specific suggestions above, a testator can draft a letter to interested parties explaining the reasoning behind the disposition of the estate’s assets, outlining their goals and objectives. This practice can create an environment of clarity and understanding as well as foster a likelihood of cooperation after the testator passes. It’s not fool-proof, but then again, nothing is. 

ProTip: Don’t Cut Someone Completely Out

Sometimes, it’s reasonable to want to completely cut an heir out of an estate, especially when there have been bad relations between the testator and that heir (or no relations at all). But providing for that heir, even in a small way, can calm the waters between the largely disinherited heir and the estate (as well as the other heirs). Calm waters make for fairer sailing, making expensive and painful litigation less likely in the future. 

DISCLAIMER: The foregoing is not a substitute for legal advice. McGraw Law PLLC recommends contacting an attorney to discuss your particular case. 

[1] That is, if the person has estate planning documents in the first place.