Wills, Living Trusts, and Family Conflict-Naperville

Today's post is simple. I will quickly compare and contrasts wills and living trusts in relationship with family conflict.

Wills and Family Conflict
Wills are simply a written contract that is witnessed by two uninterested witnesses that takes affect upon death. With wills, wills must go through a court process called "probate court". Probate court is the court which administers inheritance issues and determines who is/are the rightful heir of somebody's assets. In my opinion, wills are more often to involve family conflict.

Why? Wills require an executor to mail out notices (often certified notices) to potential heirs. In many instances, an heir is unhappy that a loved one disinherited them or gave them a disproportionate small share of their estate. Last night, I spoke with a lady that has a probate proceeding in Florida. The initial upfront retainer was $3,000 prior to commencing the probate process. Simply put, probate and wills increase family conflict because probate court encourages conflicts to get disputed and resolved. In many cases, potential heirs hire attorneys that find innovative ways to challenge and contest the validity of the will. Often times, wills are done in hospitals, through online services, and while one has an illness such as cancer. This immediately raises suspicions and seldom do non-estate planning attorneys or lay persons plan for the potential conflict that will occur.

Living Trusts and Family Conflict
Living trusts dramatically decrease family conflict because living trusts are private documents unlike wills. Wills are public records and anybody is entitled to read somebody's will. Living trusts are simply a written contract that disposes of one's property upon an incapacity or death. Unlike wills, living trusts are designed to be effective during one's life. For example, a living trusts is similar to creating a fictional third party. The proper structuring of one's assets entails transferring one's assets into the name of the living trust. For instance, a home owned by husband and wife would be owned by Jack and Sue Smith's Trust versus Jack and Sue Smith individually.

With living trusts, there are no requirement that disinherited beneficiaries receive any notices. Hence, conflict is less likely because there is no requirement of inviting conflict like wills.

Sean Robertson, Attorney at Law
Robertson Law Group, LLC
Offices in Naperville, Chicago Ridge, and downtown Chicago