Treating your kids unequally in your will, trust or estate plan
Our advice to clients is generally that you should always treat your children equally in your estate plan.
Attorney Tom Olsen: tell our listener something that they, as laymen, they may not realize this. I don't know the last time you and I talked about it but it is this situation that yesterday I had an elderly lady come to see me, she's been a long time client. Oh, gosh, she had seven kids, I think it was. Her daughter brings her down to our office and Mom and daughter proceed to come into my office. I say, "Hey, what can I do for you?" The words I'm hearing are, "Tom, I want to change my will and leave it all to my daughter here sitting next to me." You and I know.
Attorney Chris Merrill: Red flags.
Attorney Tom Olsen: Red flags, yes. It could be perfectly legitimate but I know as soon as I hear those words I look at the daughter and I say, "You're going to have to go wait in the lobby." Sometimes the child in that situation can say, "Oh, yes, I get it, I understand. Oh, no problem, Mr. Olsen." Some of them look at me and give me a very dirty look like they've been coaching Mom and they want to continue to be able to coach Mom.
Attorney Chris Merrill: They can't do that from the lobby.
Attorney Tom Olsen: No. She went to the lobby, they're always going to go to the lobby. One way or another, I'm not proceeding without them going to lobby. Then, I have an opportunity to question mom without the child in front of Mom. "Okay, why are you doing this? Tell me about it. What's your reason?"
I would say most of the time I get a good legitimate reason, "Oh, you know, my other kids ignore me, I live with her, she takes care of me on a day-to-day basis. My other kids have got plenty of money, she's got, financially she's got a hard time." Those are all good reasons, all right?
Attorney Chris Merrill: Right.
Attorney Tom Olsen: By the way, first of all, we want to confirm that Mom is competent. I'm going to be asking her questions like how old are you? What's today's date? Who's our president? Things like that.
Attorney Chris Merrill: Listing all the kids' names.
Attorney Tom Olsen: Exactly. We know from Florida law that to be competent to do a will or estate plan you have to know who your potential intended beneficiaries are, your children. You have to have a general idea of what the value of your estate is, properties, and cash in the bank, and so forth. Most of the times there's a perfectly legitimate reason for what Mom is doing, I agree that she's competent, I'll make that change for her. With her, I said, "Look, I'm okay with this. Do you want me to bring your daughter back in?" I bring the daughter back in. I said, "Mom has agreed that she wants to leave you all of your estate or her estate or 70% of her estate, and let's move on, let's get this done. Let's proceed."
Attorney Chris Merrill: How was it yesterday?
Attorney Tom Olsen: It was perfectly legitimate. Now, a little tag to that story, when I have a parent who is treating their children equally, or excuse me, unequally, and I'm gathering these reasons as to why they're treating their children unequally in their estate plan, in our database I'm making detailed notes.
Attorney Chris Merrill: Exactly. To make sure that, again, for any future reference if there is any questions or issues, we've documented.
Attorney Tom Olsen: Exactly. There's a chance down the road that Mom's going to pass away, one of the siblings is going to sue and say, "Oh, that will wasn't valid," trying to set it aside and sure enough I'll be subpoenaed, it'd happen again, it didn't-- Well, I'll get subpoenaed, "Tom, give me all your records about Mom," and that will include my database notes.
Attorney Chris Merrill: Your notes.
Attorney Tom Olsen: My notes, yes.
Attorney Chris Merrill: I think this happens more often now, right?
Attorney Tom Olsen: Well, Chrissy, I've been a lawyer for 40 years. Back in the day, very rare that kids fought when Mom and Dad pass away. These days, man, you can assume there's at least 50% chance that things are going to go south between their kids.
Attorney Chris Merrill: And you are going to get a call from one of those other siblings and/or you are going to be subpoenaed because now they've already started a lawsuit.
Attorney Tom Olsen: Well, let me say, I didn't tell you this but last week, I was not subpoenaed but I got a letter from a lawyer for one of the other kids. Actually, it's an email. I emailed her back and smiley face I said, "Well, before I get subpoenaed here's my notes that I took contemporaneously when I met with the client as to why she did this." Smiley face. I'm not going to make that attorney work for it, I'm going to tell her flat out why Mom did this and hopefully it all goes away.
Attorney Chris Merrill: Oftentimes it does because then the attorney is able to correctly tell the sibling, "Hey, this is it," and it would not move forward.