Dear Ask GYST,
How do you handle the entitled takers in your family when you’re afraid they may contest your will after you’re gone? I’ve heard differing opinions and one suggested stating in your will that “Miss Entitled receives nothing” to make it clear.
Thank you, Entitled Avoidant
Hello Entitled Avoidant,
There is a saying that goes something like, “Givers have to set boundaries because takers never do.” I appreciate your straightforward and not-uncommon question about setting those boundaries and how to protect them (and your assets) legally and perhaps emotionally from ‘complicated’ family members. End of life conversations and estate planning can already be prickly or anxiety-producing for at least a hundred reasons even at the best of times. Deciding who you want to give your assets and how–whether equally, equitably, ‘fairly’ or otherwise–can also be challenging enough without worrying about your family contesting your will. I’m sorry, that sucks.
On the legal front, I have good news. There are steps you can take to ensure your assets will go where and to whom you want them to, some are relatively easy and won’t cost you a penny.
“Givers have to set boundaries because takers never do.”
On the emotional side, grief and loss doesn’t always bring out the best in everyone and when someone dies it can throw everything and everyone sideways. Often, people show up on your doorstep with a casserole, and occasionally others take the lawnmower from your garage claiming it’s theirs. Some people get weird. Other’s show up.
My experience is there are far more ‘casserole folks’ than ‘lawnmower people’ but sadly, not everyone falls into the casserole pile (or hot dish, depending on where you’re from).
Often, people show up on your doorstep with a casserole, and occasionally others take the lawnmower from your garage claiming it’s theirs. Some people get weird. Others know how to show up.
Before we get into the nerdy legal stuff, I’d like to thank you (especially if no else does) for taking care of your own planning while also trying to minimize the drama or terribleness off in the far, far distant horizon as best you can.
On the legal good-news front: There are quite a few options to make sure ‘Miss Entitled’, or anyone else for that matter, receives exactly what you want them to–particularly if that is exactly nothing. As you guessed, creating (and fully executing) your estate planning documents is a logical place to begin. The most common documents in any estate plan are a will, power of attorney, and in some cases, by creating a trust.
But I have even more good news. Today you can confirm many of your financial assets will be easily transferred to the person of your choosing (yes, literally today – right now) after you die in a simple process that cannot be contested. If you think I’m talking about designating beneficiaries on each and everyone single one of your financial and bank accounts – you’re right! These are considered ‘transfer-on-death’ accounts and those assets can entirely avoid family feuding and the slow, confusing, often death-by-a-thousands-papercuts that is the probate court process.
How? Designate the shit out of every beneficiary-possible financial assets or bank account you have, with mother-f*cking backup beneficiaries listed on each of them. For extra fun, list a 3rd level of back-ups and if you run out of people you want to have your money then consider your favorite charity (if you haven’t already) as the final backup to your backups. They’ll appreciate it.
Designate the shit out of every beneficiary-possible financial asset or bank account you have, with mother-f*cking backup beneficiaries listed on each of them.
Before you even need to crack open a legal form or learn what an ‘executor’ or a ‘decedent’ is you can significantly minimize the total amount or value of your assets that end up in your ‘estate’ after you die and means there is far less for your family to (potentially) fight over. In fact, put the kettle on for some tea or crack open a beer from the comfort of your own home while wearing yesterday’s yoga pants if you feel like it.
Part 1 Beneficiaries
Transfer on Death (TOD) and Payable on Death (POD) accounts.
First, let’s talk about which assets are considered part of your ‘estate’ and which ones are not. Your estate’s assets are subject to probate – these are the assets you listed in your will (or forgot about and get clumped into your estate *if* there is no co-owner or a TOD beneficiary listed) – these are the assets a family could more easily contest during the probate process.
If you don’t have a will then all your assets are subject to probate (again – asset that don’t have a co-owner or TOD with a beneficiary listed) and your state laws will decide how your estate will be split up between your heirs according to, correct – your state’s laws. This is where you can hear the record scratch, the ‘died intestate’ window of opportunity open and boom, cue the walk-up music on the way up the courthouse steps to contest a will. Clearly, I’m being extra dramatic, but I think you get where I’m going here.
This is part where you can hear the record scratch, the ‘died intestate’ window of opportunity opens and boom, cue the walk-up music on the courthouse steps.
Non-probate Assets: These are not considered part of an estate and do not go through probate process (note, when set up properly):
- Property that is jointly owned with a right of survivorship or tenancy (example, real estate, your house or family home, vacation home or land, etc.)
- NOTE: jointly owned with ‘right of survivorship’ and jointly owned with ‘tenancy’ or ‘tenancy in common’ are NOT the same – tenancy generally means you ‘get to live there’ but won’t necessarily inherit or own the property – for example, the home you live in
- Assets in a trust when the trust has been finalized and/or assets correctly transferred to the trust before the asset owner dies)
- Beneficiaries: Accounts, policies and assets with a designated beneficiary (IRAs, 401(k)s, and life insurance policies
- TOD/POD: Assets with a transfer on death or payable on death designation completed (bank accounts, brokerage accounts, investments, etc.)
- Note: Many states (not all) allow for a Transfer on Death Deed which allows ownership of a property to be more quickly and easily transferred to someone else after someone dies
Probate Assets: Assets included in an estate and will be subject to the court’s probate process.
- Personal items or possessions or family heirlooms like jewelry, art, furniture, collections, etc.
- Bank accounts owned only by the person who died (with no beneficiary listed)
- Life insurance policies with no beneficiary named or have listed the person who died (themselves) or their own estate as the beneficiary
- Real estate or cars titled solely their name
- Real estate (or portion of real estate) owned as a tenant in common (which does not transfer ownership to any other surviving owner)
Most of us also have assets that aren’t in a TOD account, for example a car or personal items like jewelry or valuables. This is where the will document defines where and to whom you want your other or remaining assets. A traditional will covers a number of additional things like naming an executor to pay off debts or distribute assets, names guardians for children or pets and you designate who-gets-what from the assets in your estate like a home (who gets the house?) or smaller gifts like heirlooms or personal items.
PART 2: Estate planning documents
Yes, you should absolutely get your basic estate planning documents done, executed and make sure someone you trust knows where to find the original.
1. Get professional estate planning advice.
Putting on my legal hat (I am not an attorney, never even took the LSAT), I’d first encourage you to seek professional advice from a qualified, experienced estate planning attorney in your state about what creating a comprehensive estate plan would look like for you. The core documents in most estate plans include a will, power of attorney document and medical directives (also called a living will or advance care directives) and sometimes a trust. A trust and a will can be created together as complementary documents – it isn’t necessarily one or the other.
2. Be clear and specific in your will.
Being clear and specific in your will about who your beneficiaries are can help minimize the risk of confusion. For even more clarity that there was no mistake or oversight in drafting your will, it is also an option to state in your will clear and specific directions that certain individuals receive nothing. On purpose.
3. No-contest clauses.
To further disincentivize your family from contesting the will, a no-contest clause is a provision in a will or trust that disinherits beneficiaries who challenge the validity of the document. An example of this could be leaving a small, but not entirely insignificant amount, to someone but *if* they contest the will for more, then they get nothing.
An attorney would likely mention right around now that the best way to ensure that your wishes are legally valid and enforceable is to talk to an attorney.
4. Communicate your wishes.
Whether it is your blood family, chosen family, close friends or someone you trust, I often recommend having a conversation, communicating your wishes and (selectively) sharing your plans. Having an open and honest conversation about your wishes and the opportunity to explain the reasons behind your decisions can be a powerful and helpful conversation for you and those close to you. Every family, person and situation is different and from your question about the entitled ‘takers’ in your family – it could be a pretty tricky conversation to have or go well.
5. Stay Current. Update your documents.
One issue that can make a will less water-tight or bomb-proof is if it is outdated. You want your documents to reflect your current wishes, assets and circumstances. Life changes, such as marriage, divorce, or the birth of a child, can impact your estate plan or review it every few years to stay on top of potential issues.
How to get your will done? Whether you decide to use an online template (for your state) or work with an estate planning attorney is largely up to you and would depend on a lot of things, for example how complicated is your ‘estate’ and/or how large are the assets you’re passing on. (more soon on that, too!)
If you aren’t sure about working with an attorney I’d still encourage you to ask your network, friends or workplace for referrals and ask for a brief consultation with at least one (3 is better) to discuss your questions and concerns. A brief consultation meeting should be free and you can ask about their process and fees.
As for your family members, especially this month celebrates Mother’s Day, Memorial Day and is Mental Health Awareness month, we can only do the best we can to show up for our family and relationships while prioritizing self care and our own mental health. I hope that taking these legal and financial steps to shore up your legal documents and financial well-being may help clear the air or provide some solid ground for others.
Best of luck!
Chanel
Upcoming Ask GYST posts include: How to manage digital accounts and if it is safe to use a password manager (I’m looking at you LastPass!), Is using an online legal template ok or do I really need a lawyer?, and How do I make sure my medical wishes are followed?
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