Why Fair Doesn’t Always Mean “Equal” In California Estate Planning

In this article, you can discover…

• The differences between an estate plan that is “fair” versus “equal”.
• The types of circumstances that may warrant an unequal distribution of assets.
• How an attorney can help your family navigate both expectations and disappointments.

What Is The Difference Between A Fair Estate Plan And An Equal Distribution?

“Fairness” can be very subjective to define, as people and family situations differ. For example, you may have already helped one child pay for college, but not the other. Perhaps you helped your youngest buy a home, and your elder two children are still renting apartments.

In other words, you’ve already made gifts to these children during life, and this may mean the children you didn’t help financially receive more of your assets once you pass away.

In other situations, you may have a special needs child who will simply need more help than their siblings, who are able to work and support themselves full-time.

Another issue that often comes up is who steps in to care for parents. If you have three children and you love them all dearly, but one sacrificed in a different way to care for you in your old age, you may wish to acknowledge that kindness by leaving them more.

This is why “fairness” in estate planning doesn’t always align with an asset division that is “equal”.

How Can I Make Wise, Thoughtful Decisions When Estate Planning?

It is important to use your common sense and your gut instincts when you plan what happens with your estate. After all, estate planning is ultimately about your wishes.

Each family is different. You may find yourself in a situation where your adult children are doing quite well and don’t really need anything. Their home is nicer than yours and they drive new vehicles. In that case, you may decide to leave most of your assets to your grandchildren or to charity.

Or it may be important to you that your adult children each receive an equal share of your estate regardless of circumstances. In that case, you’ll still need to think about the “what ifs” so that if the unexpected happens, such as a child dying before you do, your plan addresses those situations.

What you don’t want to do is to allow yourself to be swayed by anyone, as estate planning is about accomplishing your goals, not someone else’s.

In every case, your starting point should be what resonates with you. From there, an estate planning lawyer can help you identify and avoid pitfalls or other unexpected pros/cons in the approach to enacting your wishes.

How Can I Clearly Document Unequal Distributions To Reduce The Risk Of Will Or Trust Contests?

When a will or trust is contested, one of the key questions asked is, “What did the person who wrote up this document intend?” To avoid having your estate plans contested, it is crucial to ensure your intentions are clear and well-documented in writing.

Let your attorney know why you are leaving one child more or less of your assets. Some people fear being that specific, as they don’t want their children to be made aware of things that were not disclosed previously. But the more clearly you can frame the reasoning and intention behind your wishes for your family, the less likely they are to contest your will or trust.

For example, if you’re leaving your eldest daughter your house, you can explain that you are doing so because she moved in with you and took care of you full-time. Then if your intention is questioned in the future, this explanation can help to show it was your intention and not the result of coercion or confusion.

Finally, include a “no contest clause” in your will or trust. This clause states that a beneficiary who contests your estate plans without a reasonable basis will receive nothing from your estate.

Attorney Rebecca Sommer is a caring, skilled estate planning attorney serving California. She’s helped clients just like you navigate unequal distributions of assets that are still fair, reasonable, and in line with their wishes and intentions.

Have questions, or in need of estate planning help? Reach out to The Law Office of Rebecca Sommer for an initial consultation today.

How Can I Explain Unequal Gifts To My Adult Children While Minimizing Conflict And Resentment?

The best way to minimize conflict is to be straightforward about your plans and reasoning. If you try to hide your reasons for unequal distribution, skirt around them, or be vague, things won’t go as well. This is true of both verbal communication and documentation. You can be loving and kind and include everyone without having to divide everything equally among your children. If you communicate your plans in advance, it can help since there won’t be any surprises to cause hurt or conflict later.

For example, if you fully pay for one child’s college expenses and the second child gets a full scholarship, you may leave that second child a bit more in your estate plan. Make sure both your children understand why you’re leaving your second child more. The more information your children have and the clearer you are, the less likely they’ll be to contest your intentions or argue.

And if you sense there may be conflicts or trouble, talk to your lawyer about how to best position things.

How Often Should I Revisit My Estate Planning Decisions Based On Fairness Rather Than Equality?

It’s best to do an annual New Year’s informal review of your estate plans. Do your plans still reflect your wishes and family dynamics? Do your plans still feel right to you?

You should also revisit your estate plans every time there’s a major life change, such as a birth, death, marriage, or divorce, as well. Those changes in your family’s makeup can also come into play when deciding on fairness.

Notes From The Field: What Happens When Clients Ask About Unequal Distribution?

I sometimes help clients who want to favor a specific child, or even a niece or nephew, because that family member really helped them out in old age. They often worry about the other children or nieces and nephews finding out, and wonder if there’s a way to prevent those excluded family members from learning that one person received more.

The answer is, ”Not really”. You can’t guarantee that their other siblings or cousins won’t find out about it, and in some cases, they are entitled to notice as a matter of law.

Ultimately, it’s up to you to decide what is truly fair, not your children, nieces, or nephews. Let me know what you would like done with your assets. Then, I’ll help you translate your wishes, reasoning, and intentions into a plan and approach that works, minimizes potential conflict, and reflects where you would like your assets to go.

Still Have Questions? Ready To Get Started?

For more information on unequal inheritance in California, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (657) 210-3722 today.