As much as Wills and related documents might appear similar from one client to another, estate planning is never a one-size-fits-all procedure. Following are five mistakes often overlooked or under-appreciated by estate planners and clients alike.
Ignoring the Obvious
Disinheritance, mixed families and radical beneficiary changes can all pose very threatening landmines in the context of estate planning. While certainly not the only potential triggers to litigation, these circumstances are among the key contributors to divisive and costly Will contests and suits among executors and beneficiaries. Sharp estate planning counsel will recognize these issues before they become true impediments to the client’s plans. Good communication with the client will help crystallize the intent behind decisions like this, and may even educate the client to their potential for disharmony in the future. No client would enjoy the thought of their private life becoming a public spectacle once lawsuits are filed and the Court becomes the arbiter of the final solution.
Permitting Beneficiaries to Join in the Plan’s Creation
Nearly every estate planner has been approached by a client’s beneficiary to discuss retaining their services. Many times, the communication is completely above-board. A son or daughter simply wants to help mom or dad arrange their affairs. But what happens when arranging those affairs also includes cutting out another child? There is never a more important time for the line between attorney and client to be carefully and clearly drawn. Meeting with a client with the beneficiary present is often a recipe for disaster, and experienced estate planners will know how identify the difference between the helpful beneficiary and the one that intends to influence mom or dad to their own benefit.
Dismissing the Significance of Non-Monetary Possessions
Few things can fan the flames of probate litigation like heirlooms, mementos and items of personal, but not necessarily monetary, significance. Too often will probate litigators come to find that the real fuel behind a piece of litigation is the personal and emotional slight that one beneficiary feels when a specific, but important, piece of property is not adequately planned for. Estate planners with an eye toward a peaceful future will always be mindful of items like this, and counsel with their client to prepare a plan that not only captures their intent, but often communicates that intent to future beneficiaries.
Writing Themselves into the Will
An estate planner including themselves in a client’s Will is almost always a terrible idea. Texas law currently voids a bequest to a Will-drafter, even extending it to their family, absent some very specific familial relationship between the attorney and the client. Even then, many attorneys will still incorporate themselves into the plan by suggesting or accepting a nomination as an Executor or Trustee. This too can lead to poor results, particularly if the Will is contested. Liberal exculpatory language can make judges and juries alike look at the attorney with heightened suspicion, and the strength of an undue influence challenge may become greater under certain facts. As a practical rule, relationships like this should be avoided where possible, or thoroughly documented when impossible to avoid.
Letting Boilerplate Language Slide
Boilerplate language encompasses those provisions of a Will that the drafting attorney rarely alters or tailors. Truth be told, on many issues, the language that works for one client will work just fine for another. But, in cases of litigated Wills, even this “harmless” boilerplate language can unravel a sound estate plan or strengthen a challenge to the document. Even minor things, such as including a “no-contest” provision when the document leaves no beneficiary who might contest the document, can raise pointed and valid questions about the client actually understanding the document when it contains language that is surplus, or achieves no purpose, under the circumstances.