When Clients Avoid Finalizing Their Trusts or “Force” Estate Planning Decisions: Risks    Recently updated !


When Trust & Estates Attorneys fail to adequately consider beneficiary dynamics in estate planning,  trustors may avoid finalizing their trusts, the trust risks being drained post-mortem by litigation, and the long-term cohesion of beneficiary and family relationships is at risk. What’s missing?  

Attorneys are trained rigorously to control all aspects of Trusts and Estates (T & E) Planning for their clients. Given this training, even the idea of “sharing” that control with additional collaborative professionals can be anathema, understandably. At the same time, we propose that this legal training creates a “bias” that can obstruct attorneys from effectively assessing critical factors – factors that may be at play when trustors thwart forward movement, or when trustors simply “force” themselves to make estate-planning decisions to satisfy perceived deadlines. Attorneys in the lead are well-advised to promote thoughtful consideration of at least two critical variables too often overlooked, namely: family/beneficiary dynamics and financial variables directly related to those dynamics.  

T & E attorneys must and do retain control over legalities in a collaborative T & E process. At the same time “retaining control” can hinder attorneys from thoughtfully considering the full extent of critical family/beneficiary dynamics at play. Trustors also often do not understand or know how to approach the dynamics between their future beneficiaries — especially when there has been ongoing conflict and tension (spoken or unspoken), and when opposing views between beneficiaries abound. If the trustors are too overwhelmed by these dynamics to move forward with an estate plan, the attorney may just assume they disappear because they “aren’t ready.”  Similarly, when trustors simply force themselves to “make decisions” without addressing these dynamics, this significantly increases the risk of litigation between beneficiaries when trustors die. 

Aside from interpersonal dynamics, there are often critical and specific financial factors tied directly to beneficiaries’ disparate views. To offer a common example, elderly parents may wish to leave their fulltime caregiving child the house, while this is opposed by other siblings who may judge the full-time caregiver as a leech.  

In such a case, the collaboratively-trained attorney knows to notice and watch for such issues, and can easily call on a collaboratively-trained mental health professional (MHP). The MHP functions as a neutral “family mediator” and facilitator of challenging but necessary conversations, often starting with private interviews with the trustors and each beneficiary. The ultimate purpose of the MHP’s work is to create greater understanding between beneficiaries, as well as between beneficiaries and the trustors, to preserve family/beneficiary cohesion when that exists and to reduce the risk of post-mortem litigation.  Negative assumptions, judgments, rigid family roles (e.g. the responsible one, the nurturing one, the ne’er-do-well, etc.) and related reactivity and tension between beneficiaries may have persisted for decades. These are the seeds of the costly post-mortem litigation that will drain a trust. Most trustors would say they do not wish to see their families torn apart by litigation post-mortem, due to failures to effectively address family dynamics during the estate-planning process.  

Over time, parents often “cope” by glossing over tensions between beneficiaries, and may force themselves to just make decisions regardless. They may avoid conflict by oversimplifying matters. They often assume and assert their beneficiaries “will be fine.” Similarly, tense beneficiary dynamics can immobilize older parents who may come to a halt and drop off of the T & E attorney’s radar. 

Collaboratively-trained T & E attorneys are freer to challenge these kinds of assumptions and to at least notice whether these dynamics are indeed “fine,” blocking forward movement, and whether tensions are likely to persist and get acted out in litigation after trustors pass.  

Note: The collaboratively-trained MHP is not out to “resolve” all differences or to get all the beneficiaries to “agree” with the trustors. Trustors always retain final decision-making power. Skills unique to MHP’s allow them to: 

  • Name the various elephants in the room,  
  • Clarify and shed light on misinformation,  
  • Encourage and help ensure the respectful sharing of disparate points of view/experience, 
  • Guide/require communication of understanding (not necessarily agreement), and  
  • Help pursue engaging a neutral, collaboratively-trained financial specialist who can identify the missing, related financial data (when that’s needed) that can clarify or eliminate interpersonal concerns. 

Per the IACP’s Standards & Ethics, all collaboratively-trained professionals must also be trained in mediation. However, even with mediation training, attorneys are not licensed and trained to assess problematic dynamics or to address the lynch-pin systemic and psychological issues in scenarios like this. When such issues are present, T & E attorneys with a neutral MHP mediator in their back pockets are empowered to create an estate plan that’s attuned to the trustors’ actual and clinically-assessed needs and challenges. Without the freedom to consider and address such variables, too often the T & E attorney can, unwittingly, be shooting in the dark, with no more than a prayer for non-litigious, long-term outcomes. Safeguards for the long-term cohesion of families/beneficiaries may be lost or absent.  

Let’s return to the above case of the full-time caregiver deemed a leech. The neutral, mediating mental health professional (MHP) assessed that the siblings really had no idea what the care-giving sibling was providing throughout each day and night. Nor did they understand what she had sacrificed to take this on, e.g. her well-paid full-time job with benefits. Furthermore, the other siblings had no idea what it would cost to ensure full-time, 24-hour care for two frail, elderly parents. The financial neutral was able to run a comparative analysis including comparable incomes of the employment/retirement benefits forfeited by the caregiving sibling, what different assisted living facilities would charge for both parents, and what different full-time in-home care agencies would cost, including food, and management of home cleaning, gardening, maintenance, repairs, etc. Hard financial data clarified and allowed for significant relief of conflict and tension around these issues, and for greater appreciation of what the caregiving sibling was actually providing.  

Once the MHP and financial neutrals significantly reduced negative assumptions, judgments and conflict, the collaborative T & E attorney was able to provide new estate planning options because these elderly parents were now able to engage family topics of concern, with support. Their attorney was able to create an estate plan solidly rooted in: a) the trustors’ and beneficiaries’ clear understanding of the family’s collective concerns and values, as well as b) the financial data that clarified the trustors’ emerging desire to generously compensate the caregiving sibling, albeit not to the total extent previously considered.   

Estate plans designed to integrate the greater psychological and  financial understanding offered by trained specialists, when needed, are less likely to be ripped apart and drained by later litigation. The T & E attorney is the only professional who can assess and determine when these dynamic and financial variables need or must be assessed for a solid estate plan. When T & E attorneys have the collaborative training to assess and get specialized support to address factors outside their legal purview, they are better equipped to fulfill on their commitment to further the long-term positive impact of their clients’ legacies.  

Post-divorce, updating your Trust & Estates plan and related documents is critical. Ria Severance, LMFT serves as Collaborative Trust & Estates mediator/facilitator, as an adjunct to similarly trained attorneys. For a brief, no-cost 15-30 minute consult regarding Trusts & Estates, please text Ria at 626.354.4334.  

Ria also offers EFT couples therapy, decision counseling, parenting/co-parenting therapy, divorce-related conjoint therapy, and serves as a collaborative divorce coach & child specialist, as well as a parenting plan mediator. For more divorce-related information please see VirtualDivorceCa.com and attend one of their no-cost Divorce Options® webinars. The process you choose for your divorce is the single most important decision you will make together. For divorce-related handouts, please go to “No-Cost Resources” page on the VirtualDivorceCa.com website.   

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