Do You Really Need a Will, Trust or Maybe Just an Enforcer?

22 Jun

Do You Really Need a Will, Trust or Maybe Just an Enforcer?

If you die with a Will, is this any different that if you die without a Will?

How about bringing in a Living Trust together with a Pour Over Will, is there any difference?

Oddly, the answers are very similar whether you die with or without a Will or put the Will together with a Living Trust; your intentions are listed in the above estate legal documents and are to be followed by the Executor of the Will, Trustee of the Trust or by the Probate Court in your jurisdiction if there is no Will or Trust.

I am not minimizing the strategic advantages of estate planning nor am I oversimplifying the complexity of structuring your estate for tax efficiency, avoiding Probate Court or trying to control the distribution of your estate after your demise, also known as “controlling your estate from the grave”.

What I am drawing your attention to is achieving a successful estate plan with the best possible compliance with your wishes and at the same time the minimum risk for your wishes failing to be legally carried through as you intended.

I have prepared hundreds, reviewed thousands of other lawyers’ estate plans, probated estates in Probate Courts and fought to have deceased clients’ wishes carried through as the decedent originally intended. Initially, there are always the fundamental flaws in a person’s estate plan:

The Will needs to be revised periodically to reflect change in a person’s personal life, such as:

  • Death or Divorce of a spouse;
  • Death of existing children or birth or adoption of new children;
  • Relocation to a different State within the United States;
  • Relocation overseas; and (but not limited to)
  • Additional beneficiaries;
    1. Birds
    2. Dogs
    3. Horses
    4. Other animals
    5. Charities
    6. Societal or Environmental Causes
    7. Non-Blood Related Individuals.

Of course, making the decision to lets your family know of your wishes for your estate may avoid the shock or expectation after death and minimize hurt feelings, lawsuits against the estate and even lawsuits against the named Executor and/or Trustee.

Not making your estate distribution known to your family members may also allow current feelings of being cheated in unequal treatment in the Will and/or Trust. There is no one answer and the true wisdom of informing your family now vs. after-death will only be known post-death. It is post-death that relatives will come forward with their true feelings of unhappiness or disbelief of what they felt would be passed on to them or that a family member unfairly influenced the decedent to leave an un-natural and unequal distribution of the estate. These feelings generally manifest into a lawsuit filed against the estate and/or the Executor and/or Trustee. In bringing a lawsuit, the estate will finds itself split between distribution of the estate in Probate Court, a Civil Lawsuit against the estate and a second Civil Lawsuit against the individual Executor and/or Trustee. All of these simultaneous lawsuits will add at least 2 years to the actual distribution of the estate plus the legal fees and court costs well into the six or even seven figures. It has always amazed me at how many relatives actively seek to be the named Executor or Trustee, if they knew the difficulties and potential litigation that can take over their personal lives for years and permanently separate them from their brothers and/or sisters!

Even with an equal distribution to the decedent’s heirs, this is no guarantee against related lawsuits. In many jurisdictions, upon the death of the individual, there is a mandate that a publication in the local newspapers be made for the purpose of identifying potential creditors who may have a claim to the estate. A by-product of this publication is alerting distant relatives that there is a death and fuels their hopes of becoming a heir to the estate. So, as much as estate planning companies profess, challenges to the Will and/or Trust is high from distant relatives as well as others claiming they have the “true” Will of the decedent.

A very effective tool recently available to estate lawyers is the creation of a Trust Protector in most States. This recent development has been with foreign jurisdiction for many years and has well tested powers from past years of challenges in court cases. This idea is better when you create a trust in a foreign jurisdiction or better yet with a private foundation with a foreign Protector, also known as an Enforcer. One of the many benefits is to have a professional Enforcer ensuring the decedents wishes are carried out without the delay and costs of litigation. The foreign jurisdictions generally have a statute of limitations for claims brought against the private foundation and do not recognize U.S. court decisions. In other words, a decided lawsuit in the U.S. is not recognized in the overseas jurisdiction and the U.S. claimants will have to re-litigate the matter in a foreign jurisdiction which will be more costly and the foreign statute of limitations may bar any claims from being made overseas.


If you are thinking of have beneficiaries outside of blood decedents, an uneven distribution to blood heirs, contributions of the estate monies or assets to charities or social/environmental causes or entities to take care of your pets after your death; then you will want to contact us for a further discussion on how we an be of assistance.

Michael B. Nelson, Esq.