There are numerous reasons why the estate planning process is inherently stressful. First, engaging in estate planning compels individuals to contemplate a time wherein they could be incapacitated by injury or illness. Second, this process also compels individuals to consider a time wherein they will no longer be around to provide for their loved ones.
Additionally, estate planning can be stressful if one’s loved ones are prone to familial in-fighting. The mere knowledge that one’s children, for example, are likely to fight over who gets to have what after their parents have passed away can be so frustrating that many people are tempted to simply allow the laws of the state to dictate the ways in which their estate is ultimately distributed.
Thankfully, there are ways to better ensure that potential heirs and beneficiaries don’t get into estate litigation or probate battles in the wake of a loved one’s death. As a result, if you are concerned about how your kids are going to respond to the contents of your estate in the wake of your death, it is important to be proactive in speaking with an experienced estate planning attorney about your options.
Proactive Approaches Are Key
As an experienced probate lawyer – including those who practice at Davis, Johnson & Kallal – can confirm, creating a living trust will allow the assets contained within that trust to bypass the probate process. As a result, one of the most effective steps you can take when trying to avoid probate in-fighting is to craft a living trust in addition to your other estate plan documentation.
Once the trust goes into effect, the assets contained within the trust will belong to the trustee assigned to manage the trust. Upon your death, the assets assigned to each of your kids will pass to them per the terms of the trust. As a result, your kids will have no choice but to accept what has been gifted to them instead of kicking up a fuss.
“Wait a minute,” you might be thinking. “Can’t they just challenge the structure of the trust like they would the structure of a will? Trusts are inherently difficult to “fake,” which is one of the reasons that their contents are generally allowed to bypass probate. The very act of creating a trust essentially proves the creator’s intent, which is a major goal of the probate process.
But, if you’re unsure of whether crafting a living trust is the right way to go, know that there are other options at your disposal. First and foremost, you’ll want to ensure that your will is updated and confirmed regularly and that your attorney understands why you’re making any alterations as your wishes and needs evolve. It will be much harder to mount an effective probate battle after you are gone if it is clear that your estate plan reflects your wishes.
Finally, consider being frank with your kids about who is getting what and find a way to record that you’ve made your wishes known to them and that they were expressed clearly and unequivocally.