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Thursday, July 6, 2017

Getting a ‘Sturdy’ Estate Plan to Survive the Challenges that May Lie Ahead


Summary: Successful estate planning requires many things. Two of these things are being pro-active and then remaining diligent. You have to be pro-active in going out and securing a complete and well-thought-out plan, and then you have to remain diligent in completing any necessary documents to make any changes you desire in your plan. If you do these things carefully with a reliable estate planning attorney, your plan can withstand many challenges.    

Many times, court cases involving estate plans are the result of something going very much wrong. Sometimes, though, there are cases where the deceased person has a solid plan and it survives a court challenge. A couple of years ago, a case came before the Court of Appeals in Arizona that involved such a plan. The creator of the plan was a Tucson-area woman who, in her early 70s, decided in 2000 to get her affairs in order. Her 2000 plan included a revocable living trust, a pour-over will and powers of attorney.

Like many living trusts, Julia’s originally called for her trust assets to be distributed, upon her death, to her three sons. Like many people, Julia’s preferences evolved over the years. As her goals changed, she dutifully created amendments to her trust to reflect these new objectives. In January 2012, Julia changed her trust’s distribution instructions. Instead of her assets going in equal shares to her three sons, she amended the trust agreement to give certain specific bequests to her children and then to split the reaming trust assets 50-50 between two of her grandsons (both children of her son, Eric.) The trust named Eric as the first successor trustee.

Unexpectedly, Julia died one month later in a massive house fire that destroyed the home and much of her personal property. Eric began that task of administering the trust and distributing the remaining assets when his two brothers began a challenge to the plan, which led the family into litigation.

The brothers argued that the law required the trial court to determine what assets were in the trust and what rights each of the children and grandchildren had. The trial judge ruled against the brothers, upholding the validity of the trust as amended. The appeals court also issued a ruling affirming that trial court decision.

The brothers’ challenge, according to the courts, never identified a valid factual dispute. The facts of the case were not in dispute with regard to the amended trust’s calling for the two other brothers to receive only certain specific bequests from the trust’s assets. Upon the mother’s death, the other brothers did not dispute that Eric, as successor trustee, made those bequests to his brothers. In one court filing, the brothers made an allegation that Eric had improperly manipulated the mother, but because the brothers did not advance this argument in the proper way, the courts refused to consider that argument. This meant that the estate plan, as amended, had withstood the challenge and would be carried out.

In this case, the deceased was pro-active and diligent. She got a plan with a living trust and a pour-over will. As her needs and goals changed, she made changes to her plan (in the form of trust amendments.) Because she took these steps, her objectives she wanted to achieve were carried out.  

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com


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