20th Jan 2015

Clients sometimes feel like their estate planning is the time and place to help resolve family issues or enforce their wishes for how heirs are to live.   While some things can be and should be taken into consideration (trusts for beneficiaries with special needs or financial issues, for example), some items should be handled through ethical wills or similar statements.

A common request is for a client’s children to maintain a close relationship.  Often a client requests that a will or trust mandate a family gathering of some sort.  While such a meeting sounds like a good way to ensure that your kids see each other, forcing them to be together never works out.  Remember when your mother told you to go spend time playing with your sister and you stomped off mad at your sister for it?  Or worse yet, what if one of the children is ill and can’t attend the family gathering, or can’t get off from work, or are in the Army and deployed overseas, do they lose their inheritance?  Another example is the parent that wants to be sure their child lives a moral life by requiring things such as regular church attendance or never being arrested.  What is regular attendance at a church, every week, holidays, only when not ill?  In some states, requiring specific religious requirements may not even be permitted. What if a child gets caught up in something not completely their fault (like protesting an unfair law), gets arrested and released, and then lives a good life afterwards? These types of requirements are nearly impossible for a trustee or executor to administer fairly.

Enter the ethical will or statement of intent.  This is a non-bonding document that allows you to set forth how you want your heirs to live.  While it is not legally enforceable, it gives your heirs a picture into your beliefs and mindset.  Then in conjunction with this, you give your trustee or executor the authority to pay for things like a family gathering or transportation to religious events.  Rather than mandate, give them the opportunity to do as you would like them to. You can’t control everything after you are gone, but you can see to it that your heirs understand your desires for them and give them the chance to live up to it.

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