One of the difficult estate planning issues that can and does come up for couples with children is whether an equal share of their estate should be left to each child.
Different children have different needs, interests, and capabilities. Some children have already been given much during the parents' lifetime, and some children may have provided assistance to a parent in their later years. Each child has a unique relationship with their parents. All of those things need to be taken into consideration when determining who gets what.
Still, it is worth considering that leaving unequal distributions to children could result in problems down the road. According to a recent Wall Street Journal article, wills that are set up haphazardly and without regard to the children's concerns have a greater vulnerability to legal challenges. Will contests, which are formal objections raised about the validity of a will, are a very real possibility. A child who doesn't feel that a will truly reflections the actual intent of the parent may pursue that possibility in court under a number of theories, including lack of testamentary capacity, insane delusion, undue influence, or fraud.
That said, it isn't always possible, or desirable, to provide equal inheritances for each child. In such cases, there are things you can do to protect your will against later legal troubles.
· Proving your capacity to make your estate planning decisions
· Writing extra letters of instruction, detailing your wishes
· Being open and honest about your estate plan while you're alive, ensuring that every family member understands it.
· Make a video or write a letter explaining in detail your reasons behind the plan and ensuring that the decisions you made were truly yours. You could attach these materials to your will as memoranda.
Taking these extra steps will ensure that your children will not misunderstand or misinterpret your actual estate planning documents. In our next post, we'll thom at two further techniques for avoiding will contests.
Source: Wall Street Journal, "Wills: How to Give One Child Less," Rachel Emma Silvernman, Sep 10, 2001.