There are numerous “attacks” to your Estate Plan that can derail your wishes- those wishes about how you want your assets allocated. Here is a short list of pitfalls:
1) Change of domicile – a new state could mean new rules governing some part of your estate plan. It is good policy to have your plan reviewed by a local estate planning attorney.
2) Changes in government policies can also affect the individual trusts within your estate plan
3) Beneficiary challenges – these are the most common ‘attacks’. Someone who presumed that they would be a recipient of some of your funds or a beneficiary who is disgruntled with the amount of their “share” within your estate plan.
4) Litigation by a presumed creditor – which can happen during probate
5) Failure to review your estate plan following a divorce. I have also written previously about the importance of reviewing your beneficiary during a ‘separation prior to divorce’ as well as after a divorce.
6) Making sure the duties of your trustee(s) and any financial advisers are clear. Trustees have been known to mismanage funds, sometimes due to unclear or conflicting statements and directives.
7) Avoid challenges to your estate based on incompetence or undue influence. Undue influence cases are held via petitions in a probate court. They can happen when a will or trust is disputed, often by a family member.
An excellent article concerning the definition of ‘undue influence’ is offered by the ABA.org (American Bar Assoc.) The article is titled: “Defining Undue Influence” by Mary Jo Quinn* (October 15, 2018). Undue influence is a complex legal issue and becoming more prevalent due to an aging population.
The above “attacks” can be minimized by having a qualified professional review your Estate Plan on a regular basis or as circumstances change in your life.
*About the Author: Mary Joy Quinn is the Commission’s liaison from the National College of Probate Judges and Director (ret.), Probate Court at San Francisco Superior Court in San Francisco, CA. She is currently active in the fields of conservatorship, guardianship, elder abuse, and undue influence.
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