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Anticipate – and Hopefully Avoid – Estate Disputes

Having an up-to-date estate plan goes a long way towards resolving family squabbles — but there may be disputes nonetheless.  What are some steps to discuss with your attorney in drafting a plan that anticipates some of these problems?

  • Think carefully about the use of language regarding family members.  When you use the term “grandchildren,” do you want it to include adopted children, only children alive at your death or step-children?

  • Many assets pass outside a will or living trust — life insurance, jointly held property and retirement plans with named death beneficiaries.  Coordinate these assets with the rest of your estate.

  • There is no upper age limit for executing a will, but if there is a competence question, the probate court will look to whether the individual had the mental capacity to know what objects were in the estate and to recognize the family members who would normally inherit (called testamentary capacity).  If you plan to leave your estate in disproportionate amounts, or even to disinherit a family member, it might be wise to explain your reasoning.

  • Determine how any debts, administrative expenses and taxes are to be paid.  Some assets, such as life insurance and retirement plan benefits, may pass outside the will.  If these non-probate assets pass to one child, for example, while another child receives assets from the estate, taxes and expenses may be shared disproportionately.

  • Consider making lifetime transfers, rather than leaving assets in a will or trust.  You will know the assets will pass as you want, but ask your advisers about any gift tax consequences.

  • If you’re concerned about family members squandering an inheritance, ask your adviser about trusts, or consider options that provide lifetime payments to a loved one, with assets eventually passing to charity.


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