Welcome back to Absolute Trust Talk for part two of our comprehensive discussion on estate litigation, featuring our associate attorney and former litigator, Ariana Flynn! This episode explores effective ways to protect your estate plan from future disputes. Ariana highlights key strategies, such as drafting explanatory letters to clarify difficult decisions and using neuropsych evaluations to address capacity questions. We also discuss why collaborating closely with your estate planner is so essential—determining how to handle co-trustees or ensuring your wishes are thoroughly safeguarded. If you’re looking to shield your legacy and avoid courtroom battles, this conversation is a must-listen!
Time-stamped Show Notes:
0:00 Introduction
0:55 Wondering if your estate plan spark conflict? Former litigator Ariana weighs in with her expert insights.
3:09 We explore how a neuropsych exam can protect your wishes if someone challenges the decedent’s mental capacity.
4:52 Learn why an attorney’s testimony is crucial in litigation and discover the measures we take to reinforce your estate plan.
7:24 Find out how we, as estate planning attorneys, go the extra mile to ensure every detail is addressed.
7:51 Is naming co-trustees the right move? Ariana reveals how this choice can significantly impact your estate’s future.
10:08 We hope our discussion provided eye-opening insights. Stay tuned for more ways to secure your legacy next time!
Transcript:
Hello and welcome to Absolute Trust Talk. I am Kirsten Howe, and I am with Jessica Colbert, one of our associate attorneys. This is part two of our episode where we’re introducing our newest associate, Ariana Flynn, and talking to her in particular about her experiences as a trust and estate litigator.
We, as planners, are always trying to learn better ways to do things because our goal is to make sure that our client’s wishes are carried out. Anytime our client has challenged their estate plan, that’s hard for us. We don’t want that to happen. Ariana is here to talk to our audience, Jessica and me, about how we can help our clients avoid trust and estate litigation after they pass away.
Jessica, why don’t you get us started today?
Yeah, like you said, I am not a litigator. All of this is entirely new to me. I’m curious to hear what Ariana has to say about what our clients can do if they’re worried about a dispute upon their death.
That’s a good question. For a client, there are some less extreme things they can do, and then more extreme things. One of the easiest things a client can do is, after creating their estate plan, they could draft a letter in their own handwriting or in their own words, just explaining why they made the decisions that they made for their beneficiaries.
This generally doesn’t arise when a mom’s estate plan states, “I leave everything equally to my three children.” It does when there’s some asymmetry or when the plan states, “I’m leaving more to this child and less to this child.” The plan shows that there’s potential for somebody to be unhappy. People don’t challenge estate plans when they’re happy with them.
Right, absolutely. When there’s an unnatural disposition or a weird distribution that the children may not approve of or don’t like, or they’re reducing their share. If a client is worried about something like that, and maybe there’s a bit more than just a letter, they could obtain—this is one of the more extreme scenarios, but they could obtain a certificate of independent review, which is a review by an impartial attorney. They could also petition the court to approve the estate plan itself.
These require the client to take extra steps that most people don’t take with their estate plans. Most people have their attorney write the estate plan and then go home. They don’t visit yet another attorney to validate it.
What about—I’ve heard of people who go and have a neuropsych evaluation on themselves so that, in the future, there’s a record that, on the day I signed this document, my brain was ok.
Right, definitely. I think that’s a good tool to use, especially if you anticipate there’s a question regarding your capacity, or there’s any concern that one of the beneficiaries or disinherited beneficiaries is going to make that trouble in the future.
When I was a litigator, I had a case in which a client—the decedent, actually, the person who passed away—knew that her child was going to be unhappy with the distribution. She actually took these steps, wrote a letter explaining her decisions, and ended up taking a neuropsychological examination right before executing the estate plan. That was so impactful and helpful later on.
Lo and behold, the son did challenge the trust based on a lack of capacity. The neuropsych exam was really impactful because it showed that she had her mental faculties; she was cognitively aware during the execution of the instruments.
Yeah, and unlike petitioning the court, it’s something that you do on your own. You do it privately. The children aren’t going to be made aware of it unless there’s a problem after you pass away. Most likely. Although, I suppose you could circulate your test results just to calm everybody down. I don’t know.
What else, Ariana?
As estate planners, we can discuss things with our clients and implement procedures or policies to help strengthen their estate plans.
Absolutely. On the flip side, when there is a trust contest, the attorney’s testimony is so impactful. I always cite the Estate of Getz case in every single case because if there’s an estate planning attorney in the planning process, their testimony is tremendous. It’s very, very powerful.
Take good records and notes of the meeting, including who was there and who brought the client. Have just the client sit in the planning meeting, and have everyone else either in the waiting room or, if you don’t have a waiting room, outside in the parking lot.
We do that with our slightly older clients. We are sensitive about this, and we will say, “You’ve got to come alone to the planning and also the signing. We need you alone.” Sometimes, clients get upset about this. They don’t like it, but it’s not even that they don’t like it—the children don’t like it. It’s really to protect the integrity of the planning, and that’s to everyone’s benefit.
Right, and we’re doing it for a reason. We don’t hate your children. It’s precisely for this purpose: preserving the evidence and ensuring that. We ask the client these open-ended questions, “What do you want? Why are you making these changes?” If they have other influence or somebody in the room, it could influence their decisions, and also breach confidentiality, and just a whole load of legal issues that could come with it.
We may ask questions that we wouldn’t ask a 35-year-old client. We might be just double-checking to establish for our own written record that you knew what you were talking about and that this truly was what you wanted on the day you talked to me. That’s why we might be a little more unbearable.
In the same vein, our clients also dislike that we sometimes make them come in multiple times to discuss what they want. If there’s any indication that something is iffy, we want to confirm that that’s actually what they want. If you told us once, we want to hear it again, so sometimes, that means multiple meetings to discuss these things.
That’s a very good point, Jessica.
I want to mention one other thing, Ariana, because I have observed this in planning meetings with you. My attitude is generally to lay out the plusses and minuses of a given decision. Then if I’m confident the client understands both the plusses and minuses, I’ll let them make their decision. But I have seen you push back a little more than I would when clients want to name co-trustees. They will say, “My daughter and my son are going to be co-trustees.” I know, just from watching you, that that must be a really gnarly thing in the courtroom.
Absolutely. I’ve seen the other end of it, and just the more risks and downsides that come out of it, rather than pros. I think the only pro is, “I want to treat my children equally,” and what a lot of our clients don’t understand is that the trustee role is a job.
It’s not about who gets what, but who’s doing the dirty work—who’s talking to the banks and signing the papers. Really, at the end of the day, only one person should be doing that job, as far as making decisions. They can always still work together and both can put their input in, but it’s really just the administrative portion of who’s signing that paper at the end of the day.
There are a lot more downsides that come from it because now you have to decide on everything together. You have to sign every single paperwork, and oftentimes these very miniscule decisions can end up in litigation because there are co-trustees.
I try to encourage clients to really think about that, and if you’re having two people in place, why? What’s your intent? The other end of that is, who are you going to have in charge? Whether it’s your—”I’m going to choose this child just because they’re my eldest child,” or “I’m choosing this child because they’re more financially responsible and can make good decisions and are able to do that job well.”
You have definitely opened my eyes to that, and I’m a little less passive and a little more pushy about it. I appreciate and thank you for that.
And thank you for all the wisdom you’ve imparted in these last two episodes. This has been really helpful, I think, to Jessica too. I’m seeing her nodding like, “Oh yeah.”
I’m glad my litigation could come in handy. I knew it would.
Thank you all for listening. I hope you got a lot out of this episode and the last one. You kind of have to listen to them together, and that is intentional on our part. We look forward to connecting with you next time.
Resources Related to This Episode:
- Absolute Trust Talk Episode 163: Courthouse Confessions: Inside Trust and Estate Litigation https://absolutetrustcounsel.com/163-courthouse-confessions-inside-trust-and-estate-litigation/
- Absolute Trust Talk Episode 129: Estate Planning Strategies to Reduce Family Conflict After Death https://absolutetrustcounsel.com/129-estate-planning-strategies-to-reduce-family-conflict-after-death/
- Absolute Trust Talk Episode 090: Choosing a Trustee – How to Get It Right https://absolutetrustcounsel.com/090-choosing-a-trustee-how-to-get-it-right/
- Absolute Trust Talk Episode 085: Estate Planning Changes Late in Life: Is it Real or is it Elder Abuse? https://absolutetrustcounsel.com/085-estate-planning-changes-late-in-life-is-it-real-or-is-it-elder-abuse/
- Absolute Trust Talk Episode 009: See Something, Say Something – Elder Abuse https://absolutetrustcounsel.com/see-something-say-something-elder-abuse/
- A Will is Not Enough – Securing Your Legacy with Estate Planning Life can change in an instant. A will is not enough to be prepared. Get free access to our actionable E-book Guidebook #1 and start protecting your legacy today. https://absolutetrustcounsel.com/guidebooks/
- Learn how to comfortably define gray areas and assess your own unique needs to effortlessly build a secure future now. Check out Guidebook #2, Estate Planning Beyond the Basics, here > https://absolutetrustcounsel.com/guidebooks/
- Get our free introductory guide to the most used estate planning tool, family trusts, and understand how we plan to help protect your family. Guidebook #3: https://absolutetrustcounsel.com/guidebooks/
- Absolute Trust Counsel would love to offer access to our Incapacity Planning resource page: https://AbsoluteTrustCounsel.com/Incapacity-Planning/. We’ve collected our top planning information all in one place so listeners can find videos, guidebooks, blog posts, and a host of information with tips and strategies on implementing, planning, and protecting themselves and their loved ones.
- We’re pleased to provide a library of e-books to address common estate planning questions and concerns in practical, easy-to-understand language. https://AbsoluteTrustCounsel.com/Resources/.
- ASK KIRSTEN: If you’d like Kirsten to answer your question on the air, please email her at Info@AbsoluteTrustCounsel.com.
[AD] Estate planning addresses many vital factors about your future and legacy. Where do you get started if you don’t have an estate plan? If you do, how have new laws and life transitions changed? Will your plan still protect you? Regardless, you deserve to have control over your wants, needs, goals, and hopes for the future. We can help you understand your options and, legally, how you will best be protected at all touchpoints. Get started today by scheduling a free discovery call so we can discuss your needs. Visit https://absolutetrustcounsel.com/scheduling/ or call us at (925) 943-2740.
