That Would Never Happen: The Most Dangerous Words in Estate Planning

Experienced Estate Planning attorneys hear certain phrases so often that they begin to tune them out. Clients say them with confidence, believing every word, often delivering the phrase with a reassuring smile. “My children get along.” “That would never happen.” “We’re a close family.” Every time I sat across from a client and heard those words, a million thoughts raced through my head. Experience taught me something that no textbook ever could: those assumptions form the fault lines along which an Estate Plan eventually fractures. Let’s consider why.

Estate Planning, at its core, requires us to anticipate the future. Not in the “crystal ball” sense, but in a practical one. Trusts and Estate practitioners design Estate Plans based upon today’s facts that must function for years, sometimes decades, later under entirely different circumstances. Experienced Estate Planning attorneys understand this reality and ensure that their clients do too. When friction arises, the client will not be there to clarify intent, resolve disagreements, or course correct. The plan must stand on its own. I often counseled clients that their Estate Plan needed to read so clearly that an attorney who had never met them, never reviewed their file, and never discussed their intent could still guide the beneficiaries and fiduciaries with confidence.

Unfortunately, repeatedly, clients build their Estate Plans on foundations of optimism instead of reality. They assume that their children will get along and “agree” after their death. They assume that the “responsible” child will remain so under pressure and grief. They assume that money will not change relationships. They assume that loss will not magnify conflict. They assume that the dynamics they see today will remain static. “That would never happen, not in my family.” Except it does.

It happens when one sibling controls another’s inheritance. What looks like a logical decision on paper, “She’s the most organized,” or “He’s always managed the finances,” feels quite different when viewed through the lens of power and autonomy. One sibling becomes the gatekeeper. The other may feel scrutinized, diminished, or resentful. Well, well-intentioned decisions invite misinterpretation. Over time, that tension builds and the fissures start to show.

It happens when the plan divides assets equally but ignores involvement. One child may have spent years building a family business, while another pursued a different path. Equal ownership may feel unfair when contributions were unequal. The child who carries the business forward often expects control. The other child expects their “fair” share. Both perspectives make sense and without careful planning, neither resolves easily.

It happens when the plan names co-Trustees without including a clear mechanism for resolving disagreements. Clients often view co-Trustees as a system of checks and balances. In practice, co-Trustees often create a stalemate. If co-Trustees cannot communicate effectively or lack mutual trust, routine decisions become battlegrounds. Administration slows. Frustration escalates. Litigation becomes a real possibility.

It happens when the client selects a Trustee based on trust or proximity rather than capability. A loving family member may lack financial acumen, emotional discipline, or time required to serve effectively. Trustees serve more than a ceremonial role. The Trustee needs engagement, judgment, and the ability to navigate complex financial and interpersonal issues. When the Trustee struggles, the entire plan feels the strain.

Most importantly, it happens because of something far more fundamental: people change. Relationships evolve. Financial circumstances shift. Marriages begin and end. Health declines. New influences emerge. The dynamics present at creation rarely remain the same. Estate Plans, however, often do, and therein lies the real risk. Assumptions fail us every time.

Estate Planning attorneys prove their worth by doing more than just drafting documents; they challenge assumptions. When a client says, “My children get along,” the conversation should not end there, it should begin there. What happens if that stops? What happens if one child needs more financial support than the others? What happens if the child you name as Trustee moves across the country, becomes ill, or declines to serve? What happens if a disagreement arises over a business, an investment, or a distribution? These questions do not undermine the client’s intent, rather they strengthen it. Estate Planning requires more than predicting the most likely outcome; it requires preparation for the challenging ones. Well-crafted plans anticipate friction and include flexibility, structure, and safeguards to address it. That usually means pushing past “that would never happen.”

Significant Estate Planning failures rarely result from poor drafting. They stem from failure to account for human behavior. Flawless documents and sophisticated provisions that do not align with human thoughts, behavior, and response under stress result in litigation. Families who once gathered for holidays now face each other across a courtroom. Siblings who share decades of history find themselves entrenched in positions neither sibling anticipated. Emotions, relationships, and money collide sometimes causing permanent damage.

All of it traces back, in part, to assumptions that went unchallenged. This places responsibility on both attorneys and clients. Attorneys must push clients to consider whether the plan would work if relationships strain, circumstances shift, or expectations diverge. Clients must engage in that process honestly. Together, they need to identify points of friction and design plans that can withstand them. That requires experience, judgment, and sometimes the willingness to say what a client may not want to hear.

At the end of the day, an Estate Plan must withstand challenges, otherwise it will fail. Failing to challenge “that would never happen” creates risk. Don’t let assumptions undermine the very plan designed to protect your legacy. Thoughtful, realistic Estate Planning, grounded in both technical expertise and an honest assessment of human dynamics, makes the difference between preserving family harmony and watching it unravel.

Tereina Stidd, J.D., LL.M.
Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com