There are a few standard questions I almost always get when people find out that I work in probate litigation. “Do people call you right away when their relatives die?” “Isn’t that tough to deal with, emotionally?” And most frequently, “What can I do to make sure no one challenges my estate plan after I die?”
The answers to these questions, respectively, are “Sometimes,” “Kinda,” and “Nothing, really.”
To elaborate on that last one, the sad truth is that there is no impregnable suit of armor that will absolutely protect your estate plan from the slings and arrows that may come its way after you die. While there are certainly steps to be taken that can minimize the damage, that grumpy grandchild, sour stepbrother, or conniving caregiver may cause problems for your intended beneficiaries after your passing, up to and including expensive litigation, no matter what you do.
So may I suggest an alternative? Proponents of the more well-known medieval plate armor may be surprised to learn about the more helpful ichcahuipilli, a different style of armor worn by Mesoamerican peoples like the Aztecs and the Tlaxcala. Rather than the heavy iron or steel plating worn by traditional European knights, the ichcahuipilli was made of densely packed cotton bound between two layers of fabric. Though perhaps counterintuitive, this Mesoamerican armor often offered better protection than European armor, as it was flexible, lightweight, able to dissipate impact over a larger area, and a lot more affordable.
What should be your takeaway from this tortured history metaphor? That rather than looking for hardline tactics to protect your estate plan, it may be easier, cheaper, and more effective to employ softer and more flexible approaches, such as the following:
- Communication – Many challenges to an estate plan have their beginnings in an unpleasant surprise. Learning that you’ve been cut out of your (beloved?) relative’s will or trust often leads to hurt feelings, which can themselves lead to litigation. To cut this off at the pass, make your testamentary wishes known early and often, and to as many of your friends and family as possible. If you get the sense that someone you know may be unhappy with the gift they receive (or lack thereof), make sure they hear it from you, and not from a lawyer. Tell them what you are doing and why you are doing it. As a side benefit, this open communication will help to stave off any post-mortem accusations that your estate plan doesn’t reflect your true intent. And if you’re wondering what the most effective way to communicate all this might be, you may want to consider . . .
- Giving Out Copies – I’ve dealt with a number of cases in which the primary issue was not any disagreement with the decedent’s last wishes, but rather an inability to prove what those wishes were because no one can find the signed documents. When no one has a copy of your will or trust, it’s easy for interlopers to come in and insist they should get a bigger cut than you intended them to have. And don’t make the rookie mistake of assuming your lawyer will be able to provide a copy to your family after your passing – I’m sorry to say that lawyers retire, they move offices, they just plain lose things, and they may even have the gall to die before you do. Minimize the risk by making multiple copies of all important documents and handing them to some trusted individuals for safe-keeping. And while you’re doing that, you might also think about . . .
- Reconsidering the Disinherited – How upset are you really with that grandchild or stepbrother we mentioned above? Upset enough to risk long and expensive litigation for your loved ones? No matter how angry you are with them, consider leaving a modest gift to even the most unpleasant family member, one that is just big enough to make them reconsider litigation that may trigger a no-contest clause and leave them with nothing. And if you don’t like this idea, then perhaps you’d prefer . . .
- Reconsidering the Disinherited’s Children – Does the person you disdain have children? You may want to consider making a gift to those children instead of their parent, with a no-contest provision dictating that the gift will be forfeited if their parent challenges the plan. Even the most obstreperous disinherited relative may reconsider a plan of action that will damage their child’s financial well-being. And of course, if you take this step, that will also mean that you are . . .
- Not Leaving Everything to Your Children’s Stepparent – It will cause problems.
Remember that emotion often drives trust and estate litigation. No matter how well thought-out your testamentary plan may be, it can all be thrown into chaos with just a few hurt feelings. Right now is the best time for you to put on your ichcahuipilli and take steps to salve those feelings before they cause problems that even a suit of armor can’t prevent.