Many people think probate is a nightmare. It can certainly be a stressful experience. While families process their grief and try to deal with their shock and emotions, family members and often friends want to know who is going to be the Executor (if there is a Will) or Administrator (if there is no Will) and what property and assets did their loved one leave behind.
Who are the beneficiaries or heirs and what needs to be done in probate court? (What needs to be done realizing that the Decedent may have failed to transfer assets to himself as Trustee of a Trust, designate beneficiaries in the trust, and/or failed to provide for a beneficiary in a Will document.)
It doesn’t have to be a nightmare for your family
One helpful step to avoid such a scenario is to prevent any surprise revelations within your estate plan. We briefly discussed this step in a previous blog post, but we will take a closer look to help avoid surprises – and potential disputes.
Issues to make clear
Your will or other estate planning documents are not the proper or best places to inform your family of major decisions.
Best practice: Do it before you have the lawyer draw up an estate plan for you. While creating such a plan, avoid secrets or surprises involving:
- Who inherits your estate
- Whether you are disinheriting a child
- Your desire to provide small funds over time for one of your adult children rather than allowing them immediate access to the funds set aside for them
- Limiting immediate access to the funds
- Providing provisions that punish a beneficiary if he/she struggles with budgeting money or if they have had bad spending habits
Planning for inheritances
It might be tough to have that conversation about financial matters and your estate planning goals. But, it is important, to avoid springing your thoughts and decisions you made on your beneficiaries (as well as your non-beneficiaries) as a surprise during the probate process. Let’s say a parent wishes to disinherit a child, or perhaps establish a spendthrift clause for a beneficiary if they struggle with budgeting (and of course, he or she disagrees). This information is not something that a trustee or a beneficiary should learn during probate (and/or during a Trust Administration).
You may convey and say one thing to a potential beneficiary but actually do something else. For example, you may, as a parent, inform your children that they would each have a share in your vacation home – but as it turns out your children discover that you did not plan on this and it is not the case. This would turn out to be a problem, such as causing a risk of conflict between the children and the remaining family members. Make your intentions clear, both in words and in writing.
Avoiding surprises in situations like this can help prevent emotional strife for family members as well as complex legal challenges within probate, such as will contests. It can also help you protect your wishes.
Your plan does not have to be private
Estate planning documents do not have to be top secret. As much as your estate plan helps you protect your legacy and everything you worked for, it actually may be a good idea to be open about it and discuss the plan with your first with your lawyer and then with your family. Communication is the best way – and often the only way – to prevent misunderstanding.