Navigating Estate Planning: Avoid Surprises in Your Will
The process of handling the estate of a deceased parent can be an emotional and challenging one for children who are already dealing with the grief of losing a loved one. However, these emotions can become even more complicated if the estate plan does not unfold as expected. This could include scenarios such as an uneven split of assets among children or the emergence of a previously unknown heir who comes forward to claim a share of the estate.
One way to prevent feelings of pain and betrayal among family members is by having open discussions about your estate plan with your loved ones before your passing. Unfortunately, estate planning attorneys often find that these conversations are rare, despite the importance of such discussions.
According to a 2022 Ethos survey of 1,000 adults, about 68% of Americans believe that discussing end-of-life preparations with their loved ones is important. However, only 47% have actually had these conversations. Additionally, a 2024 report from online estate planning service Trust & Will revealed that 34% of millennials are unsure if their parents even have an estate plan in place.
Unexpected heirs and beneficiaries can also present challenges during the estate planning process. One common surprise is when assets are designated to a person, pet, or entity (such as a charity or alma mater) as beneficiaries, which the family was not expecting. Another scenario is when a previously unknown heir, like a half-sibling, comes forward to claim a share of the estate.
While it is unclear how common unexpected heirs are, estate planning surprises are not uncommon. A 2023 LegalShield survey found that 36% of people with a will reported surprises for their beneficiaries in that document. Additionally, about 3% of wills in the U.S. are contested, according to a 2013 study published in the Nevada Law Journal.
In cases where a previously unknown heir emerges, the first step is to examine the will. If the will is ambiguous or vague in its instructions, disputes may arise that require court intervention. Probate laws vary by state, but genetic testing to prove the relationship of a previously unknown heir is typically rare. Half-siblings usually do not have to provide more proof of their relationship than any other child of the deceased.
When a will is not present, a state’s intestacy laws will dictate how the property is divided, typically favoring the closest relatives. This can lead to complications if someone is excluded from the will or if the inheritance is divided unequally among beneficiaries without clear reasoning.
Estate planning attorney Martin Shenkman emphasizes the importance of having open and honest discussions with clients during the will-writing process. By asking questions about motivations and encouraging clients to communicate with their children, attorneys can help prevent misunderstandings and conflicts among family members after a parent’s passing.
Shenkman also suggests that clients approach estate planning from a compassionate perspective rather than from a place of anger. Disinheriting a family member can have long-lasting emotional consequences, so it is essential to consider the impact of such decisions carefully.
Non-traditional family situations, such as same-sex couples, gender transitions, assisted reproduction, or surrogacies, can introduce complexities into the estate planning process. In these cases, it is crucial to find creative solutions and involve objective third parties, like trust protectors or friends, to provide impartial perspectives.
Many people delay writing a will or creating a trust due to procrastination or superstitions surrounding death. However, reframing the estate planning process as a way to leave a positive legacy and ensure the well-being of loved ones can motivate clients to take a more proactive approach to their financial future.
In conclusion, navigating estate planning can be a complex and emotional journey, especially when unexpected surprises arise. By having open discussions with family members, seeking guidance from estate planning professionals, and approaching the process with compassion and understanding, individuals can ensure that their wishes are carried out smoothly and minimize potential conflicts among loved ones.