Massachusetts Estate Planning and Elder Law

Estate Planning and Divorce - Tips on Trusts for the Family Law Attorney

Many times in a divorce, one or both parties will be required to set up a trust to hold funds for the minor children's college education.  I've been contacted by  divorce attorneys after the divorce to draft such trusts based on the language in the divorce agreement. Which was written by divorce attorneys. Not trust attorneys.  And that is where the problems can begin. 

Many times the terms used in the divorce agreement regarding the trust are not clear - for instance if "minor children" is used in one place and "emancipated children" is used in another, which was meant?  If it refers to a providing for funds for a "secondary education" does this mean only at an accredited school, or would a trade school qualify?  Trying to interpret the answers to these questions after the divorce is final so that the trust can be drafted to comply with the agreement can be time consuming and costly.  In addition, if the other party disagrees with how the trust was drafted based on vague language in the divorce agreement, that can lead to more costs and time with the divorce attorneys hashing out what their clients meant in the agreement, and the estate planning attorney having to redraft the trust. 

Checking in with an estate planning attorney when you are including language about a trust in a divorce agreement can save you and your client a lot of time and hassle, and the estate planning attorney might bring up some issues you hadn't thought of with regard to the trust. 

Charitable Giving - Being Specific with Your Wishes

Many of my clients want to remember certain charities in their Wills or Trusts.  They may say "I want to leave money to my church" or "I'd like to set aside some funds for the Salvation Army" or perhaps another charity that has local and national branches.  One thing to keep in mind when thinking about leaving money to a charity, is that it is important to consider where and how you'd like the funds to be used. 

Your church may have several different locations where the funds can be distributed, and if you want your money to stay in your local parish, you'll need to make sure it isn't left to the state or national branch.  You may even be able to specify that you'd like it to be used for a certain purpose at your local level - such as religious education, upkeep of the facilities or other special uses.   Likewise, the Salvation Army and similar charities have both local and national branches.  If you don't specify where you'd like the funds to go, they very often end up at the national level, even if you wanted them to stay in your community.  If you are leaving funds to a hospital, which are sometimes considered charitable organizations, you can also specify that the funds be used for a particular purpose.   

If you are unsure of your options, you can contact the charity or religious organization yourself to speak to someone in their planned giving department, or you can ask your attorney for assistance.  Many times, the attorney has dealt with bequests to that charity before, and can provide you with some guidance in determining how you'd like the funds to be used.  And, after you've made your decision, your attorney will coordinate with the charity to ensure that the appropriate wording is used in your estate planning documents.

When discussing charitable giving with your family, and ultimately with your attorney, make sure you specify where you'd like the funds to be left, and how you'd like them to be used.  This way, you know your wishes will be carried out and that your funds will be used the way you intended. 

ABA Guide to Wills and Estates

The American Bar Association has book called the Guide to Wills and Estates available for downloading from their website.  The book guides you through the different estate planning tools, and talks about how planning now makes things easier for your family later. 

While advice from a book does not replace a relationship with an attorney, it can certainly help you figure out what you want your plan to look like, and help you understand some of the things you'll be talking about with your attorney.  And, the book is written with general advice that is not specific to any one state, so keep in that some terms or processes described in the book might be slightly different in your state.

If one of your New Year's Resolutions is to get your estate plan in order, this book can be helpful in getting you started, but you still need to be the one to actually call your attorney and make the appointment.