You know you need to do your estate planning but you have a problem: a “problem child” more specifically, who has caused a kink in your plans. If you have an adult child with a history of mismanaging their life, it’s likely you’ve wrestled with HOW or IF to include them as a beneficiary of your estate.
Having an adult child who struggles through life can complicate an otherwise simple estate plan. When our clients are in turmoil over how to include a problem child in their estate, their adult child usually has demonstrated a weakness in one or more of the following areas:
• Gambling addiction
• Drug or alcohol addiction
• History of criminal activity
• Inability to hold steady employment
• History of financial mismanagement
• Mental health issues
• History of unhealthy relationships or marriages
• History of causing unnecessary drama with other family members
Sadly, if you fret that one of your children will be a problem during the administration of your estate, your worries probably are justified. Death does not often bring out the best in people. The stress that arises after a death can heighten behavioral problems. Here are a few things you can do to reduce the chance of your child creating problems during the administration of your estate:
1. Experience matters. If you suspect that one of your children will be difficult during your estate administration, hire the best estate planning attorney you can find. There are many things you can do yourself, but preparing your own estate plan should not be one of them. Experienced estate planning attorneys possess knowledge of sophisticated legal options that rarely are offered to you on internet sites or by attorneys with little or no estate planning experience.
2. Hire a professional fiduciary. If you cannot find anyone to serve as the executor or trustee of your estate, consider this an indicator of brewing problems. It may mean one of your kids has a well-known difficult personality or reputation. If you find this situation to be true, consider hiring a professional advisor or trust company to manage your estate. A professional fiduciary may cost more, but in the long-run it will save legal fees and stress. Professional fiduciaries are accustomed to handling disgruntled family members.
3. Discourage arguments. Add a no-contest clause to your estate planning documents. This clause says any legatee, devisee or beneficiary who directly or indirectly challenges your Will or the disposition of your assets will be treated as having predeceased you. Some states will not honor these provisions, but Kansas still recognizes no-contest clauses except under certain circumstances, such as where there is “probable cause” to contest the will. An example of probable cause would be if an invalid will was admitted to probate (improperly executed, forgery, undue influence at the time of signing, etc…).
4. Avoid probate. If all of your assets are in a trust or transfer by way of beneficiary designation, probate of your will can be avoided. By keeping your estate out of the courts, difficult beneficiaries have less of an opportunity to contest your will. Any time you need to go into court and give notice to your beneficiaries, the door for a will contest is opened.
5. Limit Control. Be selective of whom you place in positions of authority in your estate. When you choose your Executor, Trustee or even Agents for your Powers of Attorney, you should consider their temperament and ability to work with other family members and professionals such as attorneys, accountants and financial advisors. Avoid placing the “problem child” in any position of responsibility. Restricting the amount of influence this child has on estate decisions will make the process run smoother.
6. Disinheritance. This in an option of last resort and not one we often encourage. There are estate planning techniques that can be employed that will provide an inheritance for the problem child, without the need to disinherit them completely. However, we understand this option exists for a reason and sometimes there are no other suitable resolutions.
Estate planning for families with a problematic child isn’t easy, but it is something an experienced estate planning attorney can help you through. For more information, contact Davis & McCann, P. A., Dodge City, KS. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate Transactions, and related matters.
NEWS YOU CAN USE
Davis & McCann, P. A.,