Estate planning experts encourage extra diligence for blended families in which the spouses married after adult children have been raised. Generally, it’s not that bad intent results in problems. Instead, unintended consequences tend to arise because of a failure to make official, legally binding arrangements.
Be Realistic: Establish a Trust
Malice is not usually the intent in a family when a parent dies and adult children are surprised or disappointed about the distribution of the assets. Faulty plans, or failure to plan is usually the problem. This is especially true for later life marriages, in which there are likely to be multiple adult step children (and even grandchildren) on all sides. Lawyers stress the importance of making estate plans concurrent with marriage plans. As Ted Vicknair of Vicknair Law Firm explains:
Some spouses agree to leave everything to each other in a “sweetheart will” …with a promise by the survivor to treat the children from the predeceased spouse equally with the children of the surviving spouse… The best way to have an enforceable “joint will” is by using a living trust. This would be a legal document specifying how assets are to be distributed amongst all of the children on the death of the second spouse to die.
Also, it’s important for…estate planning documents to define the term “children” and in some cases, use the specific names of the children. This is especially important when there are other family members with the same or similar names. As long as the parents are well and healthy, estate plans can be amended. If one of the parents becomes incapacitated, changes cannot be legally made to their wills. If one spouse dies and the survivor remarries and names a new spouse as their beneficiary, it’s possible for all of the children to lose their inheritances. Most people don’t intend to disinherit their own children or their stepchildren. However, this occurs often when the spouses neglect to revise their estate plan when they marry again, or if there is no estate plan at all.
Appointing A Trustee
When working with a lawyer to establish a trust, the “settlor” appoints a trustee to administer it. Keep in mind that serving as a trustee is not a ceremonial duty. To the contrary, the trustee has significant responsibilities. In fact, trustees are fiduciaries, held to high standards of care, diligence and prudence. U.S. Trust explains:
A trustee takes legal ownership of the assets held by a trust and assumes fiduciary responsibility for managing those assets and carrying out the purposes of the trust. A trustee has a fiduciary duty to act in the best interests of both current and future beneficiaries of the trust and can be held personally liable for any breach of that duty. The duties and responsibilities normally fall into the following categories:
- Administer the trust according to the terms of the trust document.
- Prudently manage trust assets in alignment with investment objectives.
- Use and distribute trust assets for the purposes described in the trust.
- Account for and report on trust assets; prepare the necessary tax and regulatory filings.
Given the fiduciary responsibilities undertaken by trustees, the trust agreement may require procurement of a trustee bond to guarantee the faithful performance of a trustee in accordance with the law. As a leading national provider of many types of fiduciary bonds, Colonial Surety makes it easy and efficient to obtain a trustee bond online: Trustee Bonds Here.
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