A couple of years ago, I heard someone talking about relationships. The speaker asked what the number one cause of divorce was. Answers like, “money,” or “lack of communication,” or “infidelity” all came up, but none was correct. Instead, the speaker replied that the number one cause of divorce was “unmet expectations.” The speaker went on to clarify why this was the case, and how unmet expectations are the root cause of most of the other problems brought up. I remember thinking how true the concept of unmet expectations was not only in marriages, but in life overall.
Unmet expectations certainly create many problems in estate planning. Oftentimes, people will misunderstand what can be done in an estate plan, what cannot be done, and be upset when what they want done is not allowed by the law. When a child, beneficiary, or heir expects one thing to happen with assets, and something other than what they expect does happen, the unmet expectations can result in challenges to a will or trust. Attorneys and clients may have different ideas of what is supposed to happen in the business relationship related to estate planning also, and that can create friction in setting up an estate plan.
But, Why Can’t I Just Do What I Want in an Estate Plan?
Several times a week, I have someone ask me why they cannot just to what they want, almost always proclaiming that since they cannot do exactly what they want, the law does not make sense. I often reply that the law does not always make sense, and so we need to fit what they want inside of the allowable structure of the law. You want to make sure what you want matches up with how the law allows things to happen.
As an example, I often have clients tell me that they don’t really want to decide who should get assets in a will, but would rather leave that decision up to their personal representative. I inform them that they cannot simply do that, as a will (and a trust) require a beneficiary to receive assets. I think that this way of thinking may come from the mistaken belief that a personal representative decides who gets assets, and can change the will. This is not correct. The will dictates who gets assets, and guides the probate process. A personal representative cannot simply change the will or a distribution of assets. Instead, the will should say who gets assets, and the personal representative just carries out the will’s instructions. A person can name a personal representative to receive all assets, and then distribute them to whomever the personal representative wants, but if someone wants to do this, I warn them that their requested distribution pattern will not have the force of law behind it. Instead, the personal representative has the only legal right to the property, and we will be relying on the benevolence of the personal representative to distribute assets to other people. Relying on benevolence is not always the most sound legal strategy. Most people are OK with relying on their personal representative’s judgment, but the plan needs to be written correctly to fit within the confines of the law.
This is only one example that illustrates how the law only allows certain way of doing things, but there are many other times this becomes an issue. I want to help you know how to accomplish your goals within the structure of the law, and therefore accomplish what you want. Otherwise, your wishes may not be carried out they way you want if your documents do not comply with the requirements of Colorado law.
The Best Way to Set Up a Fight is to Have Surprises in the Estate Plan
I am amazed by how many people as me if they “have” to tell their children what the estate plan says. I respond that you are not required to tell them anything, but if the kids expect one thing, and get another, they are quite likely to fight. In my experience, most times this happens if multiple children are involved, and each child is not given an equal share. The child who receives a smaller share tends to be angry and is therefore likely to challenge a will or trust.
I am not saying the child would win such a challenge, as challenging an estate plan simply because you don’t like what it does is not a valid challenge, but the unmet expectations of being treated unequally causes this problem. Letting your children know what to expect from an estate plan can avoid these types of legal challenges, saving time and money.
There are plenty of valid reasons to give unequal distributions to different children. Sometimes a child has already received money from parents, and a distribution from an estate or trust is going to equalize those amounts. Other times a child has been acting as a caretaker for an aging parent, and while payment cannot be made while the parent is alive due to monetary constraints, a delayed payment is made out of an estate to compensate the child for their time giving care. These are good reasons to have unequal distributions, but unless they are explained to children before hand, the unmet expectations of a child may cause legal action that can be costly and time consuming.
What To Expect From Your Attorney – Not Every Estate Plan, or Estate Planning Attorney is the Same
A couple of weeks ago, I got a call from a potential client who told me his sad story of how the Veterans Administration (VA) had mistreated him. He claimed the VA had caused his leg to be amputated, and that he needed an attorney to sue the VA for him. He told me all of this without so much as even asking if I handled cases that involved litigation, or suing someone. I listened to his story for the 10 minutes it took him to tell, as I was driving somewhere at the time, and was happy to listen. After he completed his story, I informed him that I do not handle litigation and I was not the correct attorney to handle his case. At that point, the potential client started screaming at me, personally insulting me, and told me I was a coward for not taking on the case. I informed him that I was planning to give him the name of someone who could help, but based on his angry reply, I no longer wished to help, and ended the phone call.
I have no idea where he got my name, or why he thought I would take on his case just because he called me. I suspect he called me because I am accredited to practice in front of the VA, but I cannot be sure. I do think he was upset because I would not simply accept his case, and that was not what he expected to happen. His unmet expectations led him to become angry and unpleasant.
I find that many potential clients have expectations of what I am supposed to do for them. Some people understand that I will help them get their documents drafted, but others expect I will do everything for them. When I meet with a client, I discuss what I will do, and let them know what they will need to do. That way, we can have consistent expectations and can understand what to expect of each other.
I have had many potential clients compare my services to those of other attorneys, and either be delighted that my prices are less expensive, or angry that my prices are more expensive than another attorney. Some even demand to know why they are different. I explain that I do not know why other attorneys charge what they do, but that sometimes the price difference comes from an attorney that includes all of the different aspects of an estate plan in the cost, like funding a trust, or being willing to take on probate administration after someone has passed away, and that I may not do those things, which accounts for the price difference. Usually I explain what I would do, and explain what another attorney might be doing for a charge (as a complete speculation on my part), but that helps expectations to be equally understood between me and my client, so we can work well together.
Let An Experienced Estate Planning Attorney Help Manage Expectations for You and Your Estate Plan – It Eliminates Problems Before They Start!
By meeting with an experienced estate planning attorney, you can eliminate, or at least minimize, issues associated with unmet expectations. You can know how to accomplish what you want, reduce the potential for costly challenges, and know what is expected of you and your attorney. You can make an appointment by going here.