Don’t Leave Your Estate Plan to Chance

9:52 am Basic Estate Planning, Q&A

Question: I have a will leaving everything I own, including a substantial inheritance from my mother, to my husband. However, I have two adult children from another marriage and I want to ensure that they are also provided for. I have a verbal agreement with my husband that if I am the first to pass away, he will use his judgment to distribute assets to my children and name them as beneficiaries of his own will. Is this enough to provide for them?
Answer: No! In fact, your current plan is a recipe for disaster, since your husband has no obligation to distribute anything to children from your other marriage.
Your husband could remarry after you pass away and end up leaving everything to the new wife, moving your assets out of your family. Or, he could leave more of the assets to his own children and not provide as much to your children as you would have liked. It could cause your children to feel that you didn’t care about them enough to leave part of your legacy to them.
Even if that scenario doesn’t take place, your husband’s own estate plan could be jeopardized due to the federal estate tax. After his death, if the combined value of both of your assets exceeds estate tax exclusion amounts, his estate could be subject to estate taxes (which means the assets you left to him will be taxed as  part of his estate.

This potential disaster is not difficult to avert. Here’s one possible solution:
Establish a revocable living trust that would hold the assets during your lifetime. This would remove them from probate which would simplify and expedite the transition. The language of the trust can say that after you pass on, some assets are to be left outright to your children or in a trust for their benefit.
Any remaining assets could be left in a trust for the benefit of your husband, allowing him to receive income from the trust and be given the discretion to distribute principal if necessary. Upon his death, your children would have the assets distributed to them.
Your desire to ensure your husband is provided for would be honored by this solution, but wouldn’t allow him unlimited control of the assets.

One Response

  1. Mike Harmon Says:

    A friend of mine just emailed me one of your articles from a while back. I read that one a few more. Really enjoy your blog. Thanks

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