In this age of do-it-yourself frugality, many surviving spouses and family members are unfortunately experiencing the hidden cost of a loved one’s use of internet and other legal forms for estate planning. Oftentimes the Trust or Will form used by the decedent is improperly completed, does not meet the needs and desires of the person and family, and is contradictory and/or ambiguous. In the latter situation, a court must try and interpret what the decedent intended after the death of the loved one. This is expensive and time-consuming, and the Court may or may not be correct in its attempt to decipher the true intent of the decedent.
Everyone’s estate plan is unique to his or her specific desires and needs. Some of the many considerations for your Trust and Will are:
- What are the federal estate tax ramifications of the terms of my Trust and Will;
- What powers should I give to my trustee and executor;
- How can I leave a child who receives governmental assistance an inheritance without disqualifying the child from such assistance, if at all;
- In what situations can I delay distribution to a beneficiary, if any;
- Can my Trust be the beneficiary of my qualified retirement plan;
- What, if any, “no contest provisions” should be included;
- What is the difference between “per stirpes” and “per capita”;
- Will the spouses of my children inherit the child’s share if my child predeceases me;
- What does “lapse” mean;
- What is the difference between an “option to buy” and a “right of first refusal”;
- What is the rule against perpetuities and how do I satisfy it, and
- Should a HIPAA release be included in my Trust or Will.
One of the best analogies to this situation is a medical prescription pad: just because you have a valid medical prescription pad, that does not mean you should be writing prescriptions. The same is true in the legal profession: just because you have a standard, generic legal Trust or Will form, that does not mean you should complete it in an attempt to meet your individual estate planning needs.
-Attorney John R. Mugan
