What Happens If You Die Without a Will?

June 11, 2025

No matter where you live, dying without a will is going to lead to a costly, stressful and expensive experience for loved ones. It will also make distributing assets more complicated than necessary. A recent article from the Daily Journal, “Intestate succession: The risks and complications of dying without a will,” makes a strong case for having an estate plan, including a will, prepared by an experienced estate planning attorney. So what happens if you die without a will?

When there is no will, assets must be submitted to a local court to be probated, including transferring legal title to property from the decedent to heirs. Most probate proceedings take at least 18 months and, in some cases, can extend to several years. There are attorney and administrative fees based on the gross value of the assets plus taxable gains on sales and receipts.

What is a very rough estimate of costs for an estate with a total value of $1 million when there is no will? While it varies by jurisdiction, a total cost of $30,000 is not unusual. Add costs like maintaining a property, paying a mortgage and other expenses; you can see why having a will is better.

Another reason to have a will: the delays of probate can make it difficult for the estate to pay expenses. If the personal representative (executor) needs to pay bills but the estate account is not funded, even more complexities and costs will occur.

Laws vary from state to state over who receives the estate assets when there is no will. California is a community property state, so that the spouse will receive all the community property and a portion of the separate property. How much separate property will be received depends upon the number of children, grandchildren, living parents or siblings and their own children.

In most states, if you happen to die without a will, the distribution of assets is governed by kinship. If there is no surviving spouse, the estate may pass equally to children or their children. However, the court may need to search for blood relatives without children or grandchildren. If you have no children but have relatives you haven’t spoken to for years and no will, they may become your heirs.

The simplest way to prevent a nightmare for your loved ones is to consult an experienced estate planning attorney and create an estate plan, including a Will, Power of Attorney and Healthcare Proxy.

A will is used to name a guardian for minor children, an executor to administer the estate and set the terms for the distribution of property. Without a will, the court makes these decisions, including who will raise minor children and where they will live. A court-appointed guardian will not be the same as a beloved family member, altering the course of children’s lives. For parents of young children, this should motivate an appointment with an estate planning attorney.

Estate planning also includes a detailed check on the ownership status of accounts for the option to name a designated beneficiary. Insurance policies, investment accounts, pensions and bank accounts will likely allow a beneficiary to be named. These assets will go directly to designated people, no matter what your will says or if, despite reading this article, you decline to have a will created.

Real financial and emotional headaches can happen if you die without a will. Whatever your situation and wherever you live, you’ll want a will created to leave a legacy of caring for your loved ones. If you would like to learn more about probate, please visit our previous posts.

Reference: Daily Journal (May 5, 2025) “Intestate succession: The risks and complications of dying without a will”

Image by idodesign

Understanding the Essentials of Social Security Survivor Benefits

June 4, 2025

It took nearly two years for one woman to obtain her Social Security survivor benefits, despite her three decades of working in a county District Attorney’s office and knowing how to navigate government systems. Ironically, the very same systems created to help widows and widowers during a time of grief end up adding to their stress, says a recent article from Next Avenue, “’What I Learned About Survivor Benefits After My Husband Died.’” Perhaps the most essential way to prevent problems is to take care of any possible snags while your spouse or partner is still living. This starts with understanding the essentials of survivor benefits for Social Security, pensions, or annuities. It also includes reviewing the names of account beneficiaries.

Three facts to bear in mind:

When a spouse dies, the surviving spouse does not receive two benefits. They receive one Social Security benefit, usually the higher of the two amounts. Planning for the loss of one of the two checks is essential.
Survivor benefits are based on two things. First, the spouses’ age when they pass, and second, the surviving spouse’s age when claiming surviving benefits. Those already collecting benefits can switch to the higher of the two benefits.
Even if the decedent spouse hadn’t filed for Social Security at their death, the survivors’ benefit amount is based on the amount the decedent would have received at their Full Retirement age (FRA). If the spouse were older than the FRA when they died, their benefit amount would be adjusted for those years.

The widow wasn’t expecting two checks, and she knew she was entitled to 100% of her spouse’s benefit because she had been married for at least nine months and didn’t remarry before turning 60. She also had claimed her survivor benefit after reaching at least FRA for survivor benefits, which has a different set of rules than regular FRA. The FRA is 66 and 4 months for survivor benefits if born in 1958. It’s 66 and 6 months for those born in 1959 and rises to age 67 for those born in 1962 or later.

She knew her husband’s benefits were higher than hers, but didn’t know how much higher. This one detail was the missing fact, causing her benefits to be tied up for more than 18 months. She needed to provide endless verifications, identification, and other documents to get it figured out.

Here’s what you need to know to avoid or at least minimize the stress of collecting survivor benefits:

Report the death of a spouse to Social Security as soon as possible.
Have an original death certificate.
Your own and your spouse’s Social Security numbers
Your birth certificate
A marriage certificate if you’re a surviving spouse.
Divorce papers if you’re applying as a surviving divorced spouse.
SSNs for any dependent children and their birth certificates
The most recent W-2 Wage and Tax statement or the latest federal self-employment tax returns.
The name of your bank and account number for direct deposits.

Planning for survivor benefits should be included as you go through the estate planning process. Your estate planning attorney will have helpful tips to ensure both spouses understand the essentials of survivor benefits for Social Security, so you are well protected and prepared for one of life’s hardest events. If you would like to learn more about social security and estate planning, please visit our previous posts.

Reference: Next Avenue (May 7, 2025) “’What I Learned About Survivor Benefits After My Husband Died’”

Beneficiary Designations Usually Take Precedence over Will

June 2, 2025

Estate planning is more than just writing a will. Some of people’s most valuable assets—retirement accounts, life insurance policies, and certain bank accounts—do not pass through a will at all. Instead, these assets are controlled by beneficiary designations filed with financial institutions. This distinction is critical. If the information in a will conflicts with what’s listed on a beneficiary form, the beneficiary designations usually takes precedence over a will. Understanding how these two tools work together helps prevent unintended outcomes, legal disputes, and family confusion.

How Beneficiary Designations Work

Beneficiary designations are instructions you provide directly to financial institutions indicating who should receive specific assets upon your death. These forms are typically used for:

Life insurance policies
IRAs and 401(k)s
Payable-on-death (POD) or transfer-on-death (TOD) accounts
Annuities and some brokerage accounts

When you pass away, the institution distributes the asset to the named beneficiary—no probate required. Because these transfers occur outside of the will, courts and executors are not involved.

This is why it’s crucial to keep these designations updated. For example, an outdated form listing an ex-spouse can result in that person receiving your retirement account even if your will says otherwise.

When the Will and Beneficiary Form Don’t Match

If your will names your son as the heir to your IRA but your beneficiary form lists your daughter, the financial institution must follow the form, not the will. The same applies if your will states that all assets should be divided equally among your children, but a retirement account names only one of them.

These inconsistencies can create confusion, especially if family members interpret the will as the “final word.” Unfortunately, courts always side with the financial institution’s records when a valid beneficiary form is in place.

That’s why periodic reviews of beneficiary designations are essential, especially after significant life events such as marriage, divorce, birth of a child, or death of a loved one.

When the Will Takes Priority

Assets not subject to beneficiary designations typically pass through probate and are governed by the terms of the will. These may include:

Personal property (furniture, jewelry, household goods)
Real estate not held in joint ownership or a trust.
Bank or investment accounts without a TOD or POD designation

In these cases, the executor follows the will’s instructions, and the assets are distributed through probate. For this reason, a will is still a vital part of every estate plan—but it is only one piece of the puzzle.

Coordinating Your Estate Plan

Beneficiary designations usually takes precedence over a will. Ideally, your beneficiary designations, will, and trust documents should work together to avoid conflicts. An estate planning attorney can help review each component, confirm that assets are appropriately titled, and ensure your wishes are carried out consistently across all accounts and documents.

If you intend for a trust to receive retirement funds or life insurance proceeds, you must name the trust as a beneficiary or reference it in your will. Failing to do so may result in assets going to the wrong person or being subject to unnecessary taxes.

Estate planning is not a one-time event. Regular updates ensure that your legal documents reflect your current wishes, relationships, and financial circumstances. If you would like to learn more about beneficiary designations, please visit our previous posts.

Reference: Forbes (June 2, 2015) “Your Will And Trusts Aren’t Enough: Using Beneficiary Designations As An Estate Plan”

Image by Public Domain Pictures

Older Couples Should Consider Premarital Agreement

May 29, 2025

Marriage later in life brings special joys—and specific legal and financial considerations. Whether it’s a second marriage, a partnership after raising children, or finding love after retirement, older couples often have more complex financial situations than younger newlyweds. Older couples should consider a premarital agreement.

Assets, retirement savings, real estate and inheritances accumulated over decades must be handled with care. A premarital agreement (often called a prenuptial agreement) is one of the most practical tools to protect individual and family interests. Far from being a sign of mistrust, a well-crafted agreement fosters transparency, protects loved ones and reduces the risk of disputes if the marriage ends through death or divorce.

Why Older Couples Should Plan with a Premarital Agreement

Older couples frequently bring established financial histories into marriage. They may own homes, businesses, investment portfolios, or have obligations like alimony or child support from previous relationships. Some may wish to preserve assets for adult children or grandchildren.

Without a premarital agreement, state laws—rather than personal wishes—may determine how property is divided upon divorce or death. In many cases, a surviving spouse is entitled to a significant portion of the estate, even if the deceased spouse intended to leave more to children from a prior marriage.

A premarital agreement allows couples to customize these outcomes, ensuring that their wishes are respected and that their marriage starts with full financial clarity.

Key Issues to Address in a Premarital Agreement

Premarital agreements typically address how assets and debts will be handled both during the marriage and in the event of divorce or death. Common topics include:

Identifying separate versus marital property
Defining how jointly acquired assets will be divided
Specifying inheritance rights for children from previous relationships
Clarifying responsibility for debts incurred before or during the marriage
Determining spousal support or waiving it altogether

Couples may also include agreements about healthcare decision-making, although these issues are often handled through separate estate planning documents.

While some topics, like child custody or child support for minor children, cannot typically be negotiated in advance, most financial and property-related matters are fair game.

Protecting Heirs and Family Interests

For older individuals with children from previous marriages, a premarital agreement can protect family inheritances. Without one, surviving spouses could inherit property that parents intended to pass directly on to their children.

Using a premarital agreement in combination with updated wills, trusts and beneficiary designations creates a comprehensive plan that reflects your true intentions and avoids accidental disinheritance.

It’s also an act of love—shielding family members from costly, painful legal disputes and ensuring that everyone understands and respects your wishes.

Premarital Agreements Strengthen Communication

Discussing finances can be uncomfortable. However, it builds stronger foundations. A premarital agreement encourages open conversations about money, values and expectations. It forces couples to talk about important topics—retirement plans, caregiving needs and financial obligations to others—that might otherwise be overlooked.

Rather than undermining romance, these discussions show respect for each other’s histories and futures. They create shared understanding and prevent surprises down the road.

The Importance of Independent Legal Advice for Each Spouse

For a premarital agreement to be legally enforceable, each party should have their own attorney review the document. This ensures that both individuals understand their rights and obligations and that the agreement cannot be challenged later due to claims of coercion or misunderstanding.

Older couples should consider a premarital agreement. Working with an experienced estate planning or family law attorney ensures that the agreement is tailored to your state’s specific requirements and your unique circumstances. If you would like to learn more about planning for older couples, please visit our previous posts.

References: American College of Trust and Estate Counsel (ACTEC) (Nov. 5, 2020) “What Is a Prenuptial Agreement?” and Hello! Magazine (April 2025) “King Charles and Queen Camilla’s Separate Homes: Was a Marital Agreement Involved?”

Image by Louise Armstrong

Ways to Avoid Estate Disputes between Stepchildren

May 20, 2025

Estate planning in blended families comes with unique challenges. When stepchildren, stepparents and biological children are all involved, assumptions and emotions can complicate even the most well-intentioned plans. Conflicts over assets, inheritances and decision-making are more likely without a clear and legally enforceable estate plan. There are ways to avoid estate disputes between stepchildren.

While no estate plan can eliminate all tension, families who plan proactively can avoid common pitfalls that lead to disputes. Clarity, transparency and the proper legal tools make it possible to protect both your wishes and the well-being of your loved ones.

Why Stepchild Disputes are Common in Inheritance Planning

Stepchildren are not automatically entitled to inherit from a stepparent’s estate unless they’ve been legally adopted or are specifically named in a will or trust. This could lead to resentment, mainly if a close emotional bond existed during life but wasn’t reflected in the legal documents.

Alternatively, biological children may worry that a new spouse or stepchildren will “take” what was intended for them. If a surviving spouse remarries or rewrites the will, children from a prior marriage may be disinherited altogether. These fears—real or imagined—can cause deep family rifts and even legal battles.

Strategies for Preventing Conflict in Blended Families

The best way to prevent disputes is through clear and detailed estate planning. A professionally drafted will or trust should specify exactly how assets will be divided and why. This includes naming all intended beneficiaries, assigning specific gifts and documenting the roles of trustees or executors.

A revocable living trust can offer more control than a simple will for families with significant assets or complicated dynamics. Trusts allow for staged distributions, protect privacy and make it harder to contest inheritance decisions.

Another strategy is using prenuptial or postnuptial agreements to clarify what each spouse brings into the marriage and how it should be handled upon death. This provides peace of mind for both spouses and their children.

Communicating Inheritance Expectations Early

Estate plans are most effective when they don’t come as a surprise. Open communication is crucial, especially in blended families. While these conversations may feel awkward, they help set expectations, reduce suspicion and provide clarity.

Explaining contentious decisions, such as trust establishment or asset division, is essential to clarity and family cohesion. Explaining why one child receives more support than another can help family members understand your intentions and reduce the likelihood of conflict after your passing.

A written letter of intent, included with your will or trust, can be used further to explain your wishes and the reasoning behind them. This document has no legal authority but can be powerful in easing emotional tensions.

Choosing the Right Fiduciaries

Naming an executor or trustee perceived as neutral can help avoid conflict. In blended families, appointing one child or stepchild over another can raise concerns about fairness. Sometimes, a professional fiduciary—such as an attorney or trust company—may be the best option.

This approach ensures that your estate is administered according to the law and the terms of your plan, rather than through family politics. It also reduces the burden on loved ones who may already be coping with grief and loss.

Updating the Plan after Major Changes

Blended families often experience significant life changes—remarriage, new children, moves, or the death of a former spouse. Any of these events should prompt a review of your estate plan. Beneficiary designations, wills and trusts should reflect your current wishes and family structure.

Outdated documents can create confusion or lead to unintended outcomes. Regular reviews—ideally every few years or after significant life changes—keep your plan current and effective. Discuss with an estate planning attorney the ways your family can avoid estate disputes between stepchildren. If you would like to learn more about blended families and estate planning, please visit our previous posts.

Reference: The Wall Street Journal (June 1, 2024) “The Brady Bunch Breaks Down: Estate Fights Tear Stepfamilies Apart”

Photo by fauxels

Steps to Avoid Inheritance Issues in Second Marriages

May 13, 2025

Second marriages often bring joy, stability and a fresh start. However, they can also create complicated estate planning challenges. When one or both spouses have children from previous relationships, the risk of conflict over inheritance increases dramatically. Individuals often assume that love and goodwill will prevent disputes. However, without clear legal documentation, misunderstandings, unintentional disinheritance and even litigation can follow. Protecting your spouse and your children—biological and step—requires planning that accounts for family dynamics, legal priorities and financial realities. There are steps you can take to avoid inheritance issues in a second marriage.

Understand How the Law Treats Second Marriages

State intestacy laws (those that apply when someone dies without a will) typically prioritize spouses and biological children. In many cases, if a person dies without a clear estate plan, the surviving spouse will receive a significant share, possibly even everything, leaving stepchildren with little or nothing.

Even with a will, challenges can arise. A surviving spouse may claim an “elective share,” a legal right to a portion of the estate that can override the terms of a will. Children from a previous relationship may be unintentionally disinherited if all assets pass to the surviving spouse, who then distributes them according to their own will, or not at all.

These risks are exceptionally high in cases where only one spouse brought significant assets to the marriage or when there is a considerable age difference, business ownership, or a family history of conflict.

Use Trusts to Protect Both Spouse and Children

One of the most effective tools for second marriage estate planning is a trust. A revocable living trust allows you to maintain control over your assets during your lifetime, while outlining exactly how they should be distributed after your death.

For example, a Qualified Terminable Interest Property (QTIP) trust can provide income to a surviving spouse for life, with the remainder passing to the deceased spouse’s children. This structure protects both parties: the surviving spouse is financially supported, and the children are assured a share of the estate later.

Trusts can also help avoid probate, preserve privacy and reduce the risk of disputes. Unlike a simple will, a trust allows for more detailed instructions and layered planning.

Keep Beneficiary Designations Up to Date

Many assets—like life insurance policies, retirement accounts and bank accounts—pass directly to the person named as a beneficiary, regardless of what’s written in your will. That means an ex-spouse could still receive your IRA if you never updated the paperwork.

Review your beneficiary designations after remarriage to ensure that they reflect your current wishes. In blended families, dividing assets across multiple accounts may be appropriate to benefit both your spouse and children directly.

You should also consider how these accounts fit into your broader estate plan to ensure no one is unintentionally left out.

Communicate Your Intentions Clearly

Estate disputes often stem from unmet expectations. Children may assume they will inherit certain assets, only to learn after a parent’s death that those assets were left to a stepparent. Likewise, a surviving spouse may be surprised to learn that children from a previous marriage are co-owners of the family home.

The best way to avoid this confusion is to talk openly with family members about your wishes. Explain your decisions, address concerns and show how your plan provides for all parties involved. These conversations may be uncomfortable. However, they are often the most effective way to prevent conflict.

Taking these steps to avoid inheritance issues in a second marriage can mean the difference between family harmony and chaos. Putting these intentions in writing with the help of an estate planning attorney ensures that everyone’s rights and responsibilities are legally protected. If you would like to learn more about inheritance and estate planning, please visit our previous posts.

References: CBC News (April 1, 2025) “Director Norman Jewison’s wife cut him off from family, coerced him to change $30M will, lawsuits claimed” and Marriage.com (Oct 12, 2023) “5 Tips to Avoid Inheritance Issues in Second Marriages”

Photo by Barna David

Issues Family Business Owners Should Plan for in 2025

April 29, 2025

Running a family business means balancing personal relationships with long-term goals, all while adapting to changing economic and legal landscapes. There are some issues family business owners should plan for in 2025, including reassessing their succession plans, tax strategies and internal structures to maintain a strong and future-ready operation.

2025 brings fresh challenges—from potential tax law shifts to generational transitions and evolving workforce expectations. Without careful planning, even a thriving family business can stumble. That’s why addressing these key issues now can prevent costly problems later.

Preparing for Business Ownership Transitions

One of the most pressing issues for family businesses is succession planning. As the founding generation retires, many companies face uncertainty about who will take over leadership. Some family members may not be interested in the business, while others may lack experience.

To avoid conflict or operational gaps, business owners should create a written succession plan. This plan should identify future leaders, outline roles and responsibilities and include a timeline for the transition. It should also include mentorship and training periods to ensure that the next generation is fully prepared.

For those without a family successor, alternative options such as selling the business, bringing in outside management, or transitioning to employee ownership should be explored. These decisions take time to implement and benefit from legal guidance.

Navigating Tax Planning and Valuation

Tax planning remains an ongoing concern, particularly as family businesses look to transfer ownership or restructure in response to upcoming changes in the tax code. A major consideration for 2025 is the scheduled sunset of provisions under the Tax Cuts and Jobs Act, which may significantly lower the lifetime estate and gift tax exemption.

If those changes occur, the ability to pass on ownership or make large gifts to family members could become more costly. Business owners should assess whether to accelerate transfers now, while current exemptions are still in place.

An accurate business valuation is essential when making these decisions. Valuation impacts everything from estate planning to buy-sell agreements and tax reporting. A qualified valuation professional can help ensure that the business is appraised fairly and that transfers are structured to minimize tax burdens.

Managing Family Dynamics

Even the strongest family businesses can suffer from unresolved personal tensions. Disagreements over roles, compensation, or long-term vision can stall growth or lead to litigation. Establishing clear governance structures—such as regular board meetings, family councils, or shareholder agreements—helps create transparency and shared expectations.

Implementing formal communication and conflict-resolution processes also strengthens trust and ensures that decisions are based on business needs rather than personal emotions. These systems can be especially helpful when younger generations begin taking more active roles.

Adapting to a Changing Workforce

The modern workforce continues to evolve. Family businesses must adapt to new employee expectations around flexibility, remote work and corporate culture. Those who embrace change can attract top talent and position themselves for innovation and growth.

Creating competitive compensation packages and offering professional development opportunities can help family businesses remain competitive with larger corporations. Technology adoption and digital infrastructure updates are also important as customers and employees increasingly expect seamless digital experiences.

Work with a Business Law Attorney to Strategize Structures and Asset Protection

Issues family business owners should plan for in 2025 include outdated legal structures that no longer accurately reflect their current size, scope, or risk exposure. Reviewing partnership agreements, operating agreements and shareholder documents ensures that the business is protected from internal disputes or external threats.

Asset protection strategies—such as trusts or holding companies—may be appropriate to safeguard family wealth and minimize liability. A business law attorney can evaluate current documents, identify weaknesses and recommend updates based on recent legal developments. If you would like to learn more about planning challenges business owners face, please visit our previous posts.

Reference: The National Law Review (March 13, 2025) “The Big Six Items Family Offices Need to Consider in 2025”

Photo by Afta Putta Gunawan

Estate Planning for Single Dads

April 23, 2025

Estate planning is essential for all parents. However, when it comes to estate planning for single dads, the stakes are even higher. Without a co-parent to step in, ensuring that guardianship, financial stability and legal protections are in place is critical. A well-structured estate plan provides peace of mind by securing an inheritance, appointing a guardian and safeguarding financial assets to protect children in the event of unexpected circumstances.

Choosing a Guardian for Minor Children

For single dads, one of the most important estate planning decisions is naming a guardian for their children. If a father passes away or becomes incapacitated without legal documentation, the court will decide who assumes parental responsibilities. This process can be lengthy, stressful and may not reflect the father’s wishes.

Selecting a guardian requires considering factors such as financial stability, parenting values and the individual’s willingness to take on the responsibility. It is also wise to name an alternate guardian in case the first choice is unable to serve. Once a guardian is chosen, the decision should be legally documented in a will to ensure clarity and prevent disputes.

Creating a Financial Safety Net

Single fathers often bear full financial responsibility for their children, making it crucial to ensure that funds are available for their long-term needs. A life insurance policy is a key tool that provides financial security in the event of an untimely death. The policy’s payout can cover living expenses, education and healthcare costs, easing the financial burden on guardians or surviving family members.

A trust can also help manage assets for children until they reach adulthood. Unlike a simple will, a trust allows the father to specify how and when funds should be distributed. This prevents young beneficiaries from receiving a large sum of money before they are mature enough to handle it responsibly. Naming a trustee ensures that assets are managed according to the father’s instructions and used solely for the benefit of the children.

Establishing Power of Attorney and Healthcare Directives

Incapacity is often overlooked in estate planning. However, single fathers must prepare for situations where they cannot make medical or financial decisions. A power of attorney (POA) designates a trusted person to handle financial affairs if the father becomes unable to do so. This prevents accounts from being frozen and ensures that bills, mortgages and other obligations continue to be paid.

A healthcare proxy, also known as an advance directive, outlines medical treatment preferences in the event of a serious illness or accident. This document ensures that medical decisions align with an individual’s personal values and wishes, thereby avoiding confusion and unnecessary disputes among family members.

Planning for a Child’s Inheritance

Inheritance planning is another critical aspect of estate planning for single fathers. If no legal documentation is in place, assets may be subject to probate, a court-supervised process that can delay inheritance and incur unnecessary costs. A will clearly specifies how assets should be distributed and who should manage the estate.

For fathers with minor children, a custodial account or trust provides additional control over how funds are used. This ensures that money is allocated toward education, housing and daily expenses rather than being mismanaged. By structuring the inheritance properly, fathers can preserve wealth for their children’s future, while minimizing legal complications.

Updating Beneficiary Designations

Many assets, such as retirement accounts, life insurance policies and investment accounts, allow account holders to designate beneficiaries. Single fathers should review these designations regularly to ensure that the correct individuals are listed. Failure to update these documents after major life events, such as a divorce, can result in assets unintentionally passing to an ex-spouse instead of children or other intended heirs.

Beneficiary designations take precedence over wills, making them one of the most important aspects of estate planning. Keeping them up to date ensures that assets pass directly to the designated recipients without going through probate. Estate planning for single dads does not have to be daunting. Work carefully with an experienced estate planning attorney to do it right. If you are interested in learning more about estate planning for single parents. please visit our previous posts.

Reference: Fidelity (July 12, 2024) “Single parents estate planning”

Image by Phillip Neho

Removing a Trustee Due to Incapacity

April 21, 2025

A trustee is responsible for managing and distributing assets according to the terms of a trust. However, when a trustee becomes mentally or physically incapacitated, they may no longer be able to fulfill their legal and fiduciary responsibilities. In such cases, the beneficiaries or co-trustees may need to take steps to remove the incapacitated trustee and appoint a capable replacement. Removing a trustee due to incapacity is a sensitive legal matter. It requires careful planning and adherence to the terms of the trust.

Understanding the process and potential challenges can help protect the trust and ensure that assets continue to be appropriately managed.

Identifying Signs of Trustee Incapacity

A trustee’s incapacity is typically related to cognitive decline, physical illness, or other conditions that prevent them from effectively managing the trust. Common signs that a trustee may no longer be fit to serve include:

Forgetting important financial obligations or failing to distribute assets as required
Making poor financial decisions that jeopardize the value of the trust
Neglecting record-keeping responsibilities, leading to missing or inaccurate financial reports
Becoming unresponsive to beneficiaries or failing to communicate about trust matters
Receiving medical diagnoses, such as dementia or severe physical impairments, that prevent them from fulfilling their duties

Incapacity can be gradual or sudden, so it is crucial to monitor the trustee’s ability to manage the trust effectively and act when necessary.

Reviewing the Trust Document for Removal Provisions

Most well-drafted trusts include guidelines for removing a trustee in the event of incapacity. These provisions often specify:

Who has the authority to remove a trustee (e.g., beneficiaries, co-trustees, or a trust protector)
What evidence is required to prove incapacity, such as a physician’s certification or court determination
The process for appointing a successor trustee to take over management responsibilities

If the trust document clearly outlines removal procedures, the process can be relatively straightforward. However, if the document does not specify incapacity procedures, court intervention may be required.

Seeking Medical and Legal Evidence of Incapacity

In cases where a trustee’s incapacity is disputed, gathering medical and legal evidence is necessary. This often includes:

Medical documentation from a licensed physician stating that the trustee is no longer capable of making financial decisions
Statements from beneficiaries or co-trustees detailing instances of mismanagement or neglect
Court petitions, if necessary, to legally establish the trustee’s incapacity and authorize their removal

Having clear documentation can prevent unnecessary legal disputes and ensure a smooth transition of trustee responsibilities.

Initiating the Removal Process

If the trust document provides a process for removal, the first step is to follow the outlined procedures. This may involve notifying the incapacitated trustee, obtaining required medical opinions and formally naming a successor trustee.

If no removal process is specified in the trust, the beneficiaries or co-trustees may need to file a petition in probate court to request judicial intervention. The court will review medical evidence, evaluate the trustee’s condition, and determine whether removal is in the best interest of the trust and its beneficiaries.

Appointing a Successor Trustee

After the incapacitated trustee is removed, a new trustee must be appointed to manage the trust. The trust document typically designates a successor trustee. However, if no successor is named, the beneficiaries or the court may need to appoint one.

Choosing a responsible and qualified individual or corporate trustee ensures that the trust remains properly managed and continues to serve its intended purpose.

Preventing Future Issues with Trustee Incapacity

Removing a trustee due to incapacity is never easy. To avoid future complications, it is essential to include clear incapacity provisions in a trust. These provisions should outline who has the authority to remove a trustee, what documentation is required and the process for appointing a successor.

Families can also consider appointing co-trustees or a trust protector who can step in if the primary trustee becomes incapacitated. Taking these steps ensures that the trust remains in capable hands and that assets are protected for beneficiaries. If you would like to learn more about the role of the trustee in estate planning, please visit our previous posts.

Reference: ACTEC Foundation (January 2024) “Practical Considerations in Dealing with Incapacity”

Photo by Andrea Piacquadio

Tell Designated Representative Where to Access Your Estate Planning Documents

April 15, 2025

Estate planning ensures that your assets, medical decisions and financial affairs are handled according to your wishes. Those plans can only be carried out if your designated representative—whether an executor, trustee, or power of attorney—knows where to access critical documents. If estate planning materials are lost, misplaced, or inaccessible, it can create confusion, legal delays and unnecessary stress for your loved ones. Taking the time to securely store your plan and tell your designated representative where to access your estate planning documents ensures that your estate plan functions as intended when the time comes.

Why Document Accessibility Matters

Many families assume that having a will or trust in place is enough. However, if those documents cannot be located, probate courts may default to intestacy laws, meaning assets could be distributed in a way that contradicts your wishes. Similarly, if a healthcare proxy or financial power of attorney cannot be found in an emergency, your designated representative may be unable to make urgent decisions on your behalf.

Common problems arise when:

Family members are unaware that estate planning documents exist
Digital copies are stored without providing access credentials
The original signed documents are locked away in a place no one can reach
The wrong version of a will or trust is used because outdated copies were not replaced

Avoiding these pitfalls requires proactive planning and clear communication with the individuals responsible for managing your estate.

Where to Store Estate Planning Documents

Estate planning documents should be secure yet accessible to those who will need them. Some of the best storage options include:

A fireproof and waterproof home safe – Provides security while allowing easy access for trusted individuals
A safe deposit box at a bank – Offers high security but may require legal documentation to access after death
With an estate planning attorney – Ensures documents are professionally stored and available when needed
Secure digital storage – Online vaults or encrypted cloud storage can provide a backup. However, access credentials must be shared

The chosen storage location should be clearly communicated to the executor, trustee, or agent named in your estate plan to prevent any complications.

Documents to Keep Readily Available

While some documents, such as property deeds or financial statements, may not require immediate access, others are time-sensitive and should be readily retrievable. Key estate planning documents include:

Last Will and Testament – Guides asset distribution and executor responsibilities
Revocable or Irrevocable Trust Documents – Directs how assets in a trust are managed and distributed
Power of Attorney Forms – Authorizes financial decisions in case of incapacity
Healthcare Proxy or Medical Power of Attorney – Grants decision-making authority for medical care
Advance Directives (Living Will) – Outlines medical treatment preferences
Insurance Policies and Beneficiary Designations – Ensures quick access to life insurance claims
Funeral and Burial Instructions – Prevents family disputes and provides clarity on end-of-life wishes

Providing copies or access to these documents ensures that designated representatives can act swiftly when needed.

How to Inform Your Designated Representative

Choosing someone to manage your estate and medical decisions is a crucial part of estate planning. However, they must be properly informed about their role. Have a conversation to discuss:

The responsibilities and expectations of their position
Where estate planning documents are stored
Who else should be involved in financial or medical decisions
The process for updating or modifying documents in the future

If digital records are used, ensure that you share any necessary login credentials or security codes to prevent access issues. Many people choose to provide their attorney or executor with copies of their estate documents, ensuring that the most up-to-date versions are readily available. Telling your designated representative where to access your estate planning documents will give you and your loved ones the peace of mind knowing that your planning will be addressed properly. If you would like to learn more about the role of the executor, or trustee, please visit our previous posts.

Reference: Charles Schwab (Jan. 21, 2025) “How to Store Estate Planning Documents”

Image by Kris

Category: Wills

What Happens If You Die Without a Will?

Beneficiary Designations Usually Take Precedence over Will

How Beneficiary Designations Work

When the Will and Beneficiary Form Don’t Match

When the Will Takes Priority

Coordinating Your Estate Plan

Older Couples Should Consider Premarital Agreement

Why Older Couples Should Plan with a Premarital Agreement

Key Issues to Address in a Premarital Agreement

Protecting Heirs and Family Interests

Premarital Agreements Strengthen Communication

The Importance of Independent Legal Advice for Each Spouse

Ways to Avoid Estate Disputes between Stepchildren

Why Stepchild Disputes are Common in Inheritance Planning

Strategies for Preventing Conflict in Blended Families

Communicating Inheritance Expectations Early

Choosing the Right Fiduciaries

Updating the Plan after Major Changes

Steps to Avoid Inheritance Issues in Second Marriages

Issues Family Business Owners Should Plan for in 2025

Estate Planning for Single Dads

Removing a Trustee Due to Incapacity

Tell Designated Representative Where to Access Your Estate Planning Documents

Categories

View Blog Archives

Watch the

Estate Of The Union

Join Our

eNewsletter and Blog Digest List

Listen to the

Estate Of The Union

Texas Trust Law

Quick Links

Areas We Serve

Connect With Us