Clients sometimes have peculiar wishes. As estate planning attorneys, sometimes it seems as though we’ve seen it all! Here is a link to a cartoon which pokes fun at estate planning oddities and suggests (in jest) that a well-known email scam may be carrying out someone’s last wishes.
Whether it’s leaving random legacies or other unusual bequests, clients have a right to leave their assets the way they wish. However, we have a duty to suggest alternatives, where appropriate. After all, we’re the experts.
For example, if the client wants to give assets outright to their beneficiaries, holding the assets in trust might be more appropriate. By leaving the assets in trust, the beneficiary’s assets can be protected against divorce, creditors, estate taxation, and even the beneficiary’s own misjudgment.
Another common example is the client who wants to designate particular assets to go to specific people. Let’s say a client owns a vacation home and a city home, both worth about the same amount. The client wants to leave the city home to his daughter and the vacation home to his son. Both properties were of equal value and at that time. Several decades pass. The city home has gone down in value due to urban blight. The vacation home has dramatically appreciated due to development pressure. The vacation home is now worth ten times that of the city home. If this risk had been explained to the client, perhaps the client would have given each child an equal share of the estate with a right of first refusal over the designated property.
Experienced estate planning attorneys have seen what works and what does not work. We know that if you make one child the trustee of another child’s trust, it may cause tension between those siblings. We know that there is often tension between a new step-parent and the children from a prior marriage. Clients may be oblivious to these possibilities and one of our roles is to alert the clients to the possibility of these relationship difficulties and the pitfalls of other dispositive schemes, like those in the examples above.
It is the estate planning attorney’s role to propose a plan that is likely to achieve the client’s objectives in the best manner possible. This does not mean just writing down exactly what the client says. Many clients do not know the alternatives regarding dispositions. It means providing the client guidance and alternative methods of accomplishing goals.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555