From the Estate Planning, Probate & Trusts Practice.
George Burns once said, “Happiness is having a large, loving, caring, close-knit family in another city.” He may have been on to something. Families can bring us joy, but they can also bring us heartache.
For most people, of course, family woes are mere annoyances-the parent who complains we never call, the crazy uncle who asks embarrassing questions, or the in-law who is quick to find fault.
But for some of us, family problems can blossom into outright hostility. Our relatives may disapprove of our relationships and stop speaking to us as a result. Or other issues-like religious differences, financial entanglements, or the perceived slight that will never be forgotten-may lead to serious family strife.
In cases like these, mere silence may be a blessing. The real trouble may start when someone dies. Death may bring out the best in a family, and a sense of togetherness may result. When it comes to dividing up with worldly goods, expressions like “Mom would have wanted you to have this” are apt to be heard.
But death may bring out the worst instead. Arguments may erupt over where to hold the funeral, whether to sell the family home, and how to decide who gets what. The phrase “Mom would have wanted me to have this” is likely to be uttered.
In extreme cases, lawyers may become involved. The authenticity of the Will may be challenged based on “undue influence” or other grounds. Or one relative may try to have another removed as the personal representative (executor) of the estate.
Simply put, death is often not for the faint of heart. As author Rick Riordan says in his book Sea of Monsters, “Sometimes the best we can do is to remind each other that we’re related for better or for worse.”
Better than offering gentle reminders, however, is preventing problems before they arise. Simply having a Will in place can help head off family disputes by making your wishes clear. A Will allows you to say who should settle your estate and where your assets should go. Other estate-planning documents can also prevent controversy by authorizing someone to plan your funeral and dispose of your remains.
These documents are especially important for members of the LGBT community. Without a current estate plan as guidance, tasks such as settling your estate and disposing of your remains would fall to your next of kin. For married couples, this would be the surviving spouse, but for others, the person selected could be an estranged parent or greedy sibling. The result may be a far cry from what you would have wanted.
If the threat of a Will challenge seems likely, an attorney can include an “in terrorem” clause in the document. This simple provision effectively disinherits anyone who contests the Will without probable cause. In more extreme cases, assets can be place in a revocable living trust. The trust would become irrevocable upon your death and is much harder to challenge than a Will.
Whether you include defensive measures or not, the greatest benefit to having your Will prepared may be your own peace of mind. As George Burns also said, “If you ask what is the single most important key to longevity, I would have to say it is avoiding worry, stress, and tension. And if you didn’t ask me, I’d still have to say it.”
This article is intended to provide general information about legal topics and should not be construed as legal advice.