Trusts: February 2011 Archives

February 20, 2011

When Divorced Parents Disagree on Guardians

Will being signed.jpgDear Liza: What if divorced parents disagree on a guardian? In the case of joint legal custody, with visitation for one parent, are the wishes of the parent with physical custody granted, or does it solely depend on who dies first? Or does it also depend on which state? It is always unfortunate when divorced parents cannot agree on who should take care of minor children. I always encourage my clients to try and find common ground on that, at least. But here's what happens: the first parent to die isn't going to have a say in the matter in most cases. Unless there's some compelling reason not to let the surviving parent take custody (they are in jail; they don't want to take custody; history of abuse), the surviving parent will be in charge of raising the children. That parent's Will, subsequently, will control who is then nominated to be a guardian for minor children. If you have good reason NOT to want a divorced spouse take custody should you die first, you can put that information into your Will (which will be public after your death), or put it in a side letter to be opened only upon your death. If you are seriously concerned about this, please see a good estate planning attorney in your state, so that your estate plan can appropriately document your concern and your reasons for such concern.
February 18, 2011

Trustees Decide When Beneficiaries Don't Agree

happy family.jpgDear Liza: I am one of 5 beneficiaries of a living grandparents are both deceased now.  Everything is to be divided equally 5 ways.  There are several properties involved that need to be sold etc. One property in particular is a "cabin" in a small town. How do you decide who "gets" it if more than one party is interested, but not all interested parties want to share? As a general rule, unless the trust instrument itself says something differently, it's up to the Trustee to decide how to make the shares equal in a situation like this. Of course, it's always better if everyone can agree. And, as a beneficiary, you are entitled to full disclosure of the values of the assets so that you can make sure that the shares are equal, or very close to equal (it's sometimes hard to match up perfectly). If you disagree with an appraisal, you could request that another appraisal be made. Though I don't recommend it, you can even retain your own counsel to advocate for you in the settlement process.  Like most family situations, though, working it out is generally a better idea than getting "lawyered up."