My mentor was a meticulous, forward-thinking attorney. When she retired from private practice I succeeded her and took over her client files. As a result, I had the pleasure of reading many of the wills she had drafted (not a recommended activity for narcoleptics who don’t want to fall asleep). She was absolutely scrupulous when it came to naming contingent beneficiaries to an estate. For some of her clients, and indeed for me too at times, it seemed like a maddening process.
Here is a common scenario: I imagine going to an attorney to draft my Will, create beneficiary designation forms, and consider creating a trust. Now comes the moment of truth: When I pass away, who gets what? The first answer is usually simple: if I pass away I want my wife to receive my entire estate. If she passes away before me, I want my children to receive it in trust. But if they then pass away before me…well…what do I want?
Should the funds go to my parents and my wife’s parents? They are most likely already deceased if me, my wife and my children are dead. Then what? I have a step-brother and sister who both have children, but my wife does not have a surviving sibling or any nieces or nephews (however, she does have close family members she would like to receive under those circumstances…I think?). Now the decisions become more difficult, my wife and I start quarreling about the asset disposition, we review which of our respective finances should go to which family, and what was supposed to be an easy process turns into a heated argument regarding matters that are so unlikely to occur as to barely justify the discussion.
I appreciate that there should be a starting point and absolute ending point for all estate documents. But the exercise of “If this person predeceases you, then what? And if they do too, then what? And then what?” can become strictly academic or, at worst, acrimonious.
I suggest people make contingencies that are reasonable:
- What is somewhat likely to occur in the next 25 years?
- Will you be able to change your documents if key players to your estate have all died in rapid succession?
- Is it possible to name entire sides of a family instead of individual family members (Example: “My cousins and my wife’s cousins per stirpes,” NOT “My cousins Harry and Nancy, but not Tina and her cousin Bill but, but yes to Jacqui if she is 30 and a college graduate…”)?
By answering these three questions you should be able to create a solid legal document that avoids future litigation but does not read like a “Choose Your Own Adventure” book.
