Make Sure Intent Is Clear in Your Will If You Wish to Provide for Children of Prior Marriage

In a recent case a daughter sued the estate of her deceased Dad. The Dad and his second wife created a trust. (A living trust is a common 6933288-woman-with-headache-holding-her-hand-to-the-head-isolated-on-whiteestate planning tool in California. Using a trust avoids having a will probated.) After his death the wife revoked the part of the trust that trust that created a bypass trust for the benefit of Dad’s children from a prior marriage. Daughter claimed that this bypass trust should have been irrevocable, and not subject to the surviving spouse’s power to revoke. The Daughter lost. The Court found that In order to win the Daughter had to prove by clear and convincing evidence the alleged “true” intent of the Settlors, and that the estate planning attorney made a mistake when he reduced that intent to writing.

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A lot of people don’t put much thought into their estate planning. They leave it to the attorney who drafts the trust or will. However, it makes sense to make clear to your spouse and to your estate planner what you intend.  Here, if the Dad really wanted the second wife to have the ability to disinherit the Daughter a few sentences in the estate plan would have made it clear. If Dad didn’t want the second wife to have that power a few modifications to the estate plan would have ensured his desires were followed.

Tags: LivingTrust

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