Randall had no idea that the decisions would be as hard as they were. When Randall and his wife met with the attorney to draw up their wills, they had already agreed pretty much on how they would handle things. They would each leave the marital home and their retirement, checking, and savings accounts to one another, for the survivor to pass on to their children and grandchildren on the survivor’s own demise. But they planned together for Randall to bequeath his investment accounts and business interests to their children and grandchildren on his demise, whether his wife predeceased him or not. And they agreed to favor their two most-responsible adult children to whom they were closest, while somewhat disfavoring their two other adult children with whom they barely had relationships. But when it came right down to it, Randall wasn’t sure of anything. He didn’t really know why he was about to do what they were planning to do.

Deciding

Many regard the decision as to whom to make one’s heirs as the biggest legacy question. In some families, particularly those having insubstantial property to transfer from one generation to another, heirs are not a big issue. The legacy is instead in the love, society, companionship, memories, values, and commitments the decedent reflected, not in the property the decedent left behind. Yet in other families and situations, particularly those involving transfers and dispositions of substantial generational wealth, the decision as to whom to include and whom to exclude as an heir, and what divisions of what property and interests to make in a will and broader estate plan, are indeed huge legacy questions. And that’s true not only because the property may be so substantial as to be life changing for its recipients but also because of the relationship and values the inclusion or exclusion of heirs reflects. Excluding an obvious and natural heir is surely a judgment of some sort, one that may, for better or worse, change a legacy.

Goals

When deciding on heirs, one does well to think first about legacy goals. Testators can have several legacy goals they hope to achieve through choosing heirs. At the deepest level, testators generally want their decisions on heirs to reflect certain values and commitments. Otherwise, they may as well just roll the dice, making bequests into a game of chance. Equality can be a major goal. Some testators, for instance, will treat their children equally no matter how good or bad, and close or distant, their relationships are with their children. Other testators may have equity rather than equality as their goal. If one child cared for, served, and honored the testator far more than another child, throughout a lifetime and especially in later years, and that child would benefit far more from an inheritance and even needs an inheritance because of the child’s sacrifices for the testator, then equity would demand substantially different bequests. Provision and care can be other goals, measuring bequests by the degree to which children may need or benefit from them. Whoever your natural heirs are, and whatever your circumstance is, first consider the goals you want your bequests to achieve and the values you want your bequests to honor.

Spouse

Your spouse is an obvious heir, indeed perhaps the most obvious and natural heir. Although many parents would first think of their children, if your spouse survives you, then your spouse may need to retain everything that the two of you own, for your spouse’s support after your demise. A common arrangement is for each spouse to bequeath everything to the other spouse and only then, if the other spouse does not survive the testator, make bequests to children or other heirs. But you and your spouse are the judges. If the two of you agree that your estate is substantial enough to provide for your spouse and to bless your children or other desired heirs with their own bequests, then do so. You and your spouse each get to decide. You do not make a joint will. You instead each make your own wills, and you may each do so based on your own choices. Yet you and your spouse should share your wills with one another when executed. The survivor of the two of you will find out eventually. And your bequests with which your spouse disagrees can affect your spousal relationship. Most states also permit a spouse to elect a share of your estate against whatever your will says, for the purpose of ensuring your spouse’s support. Work closely with your spouse to make the best decision together. Honoring your spouse honors your marriage and blesses your children with that honor. Your children should understand if your surviving spouse gets to enjoy your full estate until your spouse passes away and, in doing so, determines their inheritance.

Divorce

If you have divorced, then you should revisit any will you made while married and any related joint deeds, titles, or other aspects of your estate plan. Neglecting to update your bequests after divorce can seriously adversely affect your legacy. In many states, divorce automatically revokes bequests to the divorced spouse and any related rights such as the ex-spouses appointment as personal representative. But that’s not true for all states. And you may not want your estate going to, and controlled by, your ex-spouse rather than your children or other natural heirs. Revisit your will to amend it or revoke it in favor of a new will, accounting for your divorce. Don’t ruin your legacy by neglecting the implications of your divorce on your will and estate plan. 

Remarriage

The same is true with remarriage, that you should promptly revisit any will and estate plan you made before remarrying, unless your will and estate plan fruitfully anticipated your remarriage. You may want to bless your new spouse with a bequest. You may also want to recognize in your will any children you and your new spouse have together. You may also want to account in your will, one way or another, for your spouse’s own children by a prior marriage, those who would now be your stepchildren. You may also want to ensure, though, that your remarriage does not unduly adversely affect your estate plans for your own children from your prior marriage. Your children’s concern for protecting their inheritance against the ways and wiles of your new spouse may deeply affect your family’s relationships unless you deal effectively with their concerns. Work it out the best you can, protecting and honoring your children while also honoring your new spouse, to preserve and enhance your legacy. Remarriages can scramble the legacy egg. Be sure you find the right legacy recipe.

Parents

If your parents are living when you execute your will, you may wish to provide them with a bequest in your will, contingent on their surviving you, if doing so would aid their support after your passing. You may, though, have better ways to provide for their necessary support in your absence, such as through a life-insurance policy, family trust, or commitment you gain from your spouse or a sibling to continue to care for them after your passing. The inheritance rights and interests of a parent are not generally a substantial concern when executing a will, given the unnatural order of any such passing of a child before a parent. Just be thoughtful about any potential legacy issues or concerns when executing a will while your parents are still living.

Children

After your spouse, your children are your most obvious natural heirs. How your will and estate plan treats your children may be your biggest legacy question. If you have one child, leaving your main bequest to that child could be an easy call. If you have multiple children, dividing your bequests equally among them may likewise be an easy call. While you may make equal proportional bequests to your children, don’t miss the opportunity to increase sentimental value with specific bequests of items that mean more to one child than to another child, provided that you otherwise equalize market values. If one child values your rocking chair while another child values your desk, then make specific bequests of those items to those children, or give them the items before you pass. The bigger question can be whether to make unequal proportional bequests among children. One sound rationale for unequal bequests can be the greater need of one child than another, especially if you have a disabled child incapable of providing for the child’s own needs. Your other children would likely understand if you favored the disabled child with your bequests, on support grounds. To enhance your legacy, be thoughtful about your children’s critical needs.

Disfavor

Another rationale for unequal bequests among children can be the relative quality of the relationships you have with your children. Some children break off all relationships with their parents. Other children neglect their parental relationships. Other children act disrespectfully toward their parents, even undermining their parents’ interests, reputation, and relationships with slander and by other means. Some children are even violent and abusive toward their parents, or commit theft, conversion, and embezzlement of their parents’ property. Children can unfortunately supply good reasons for their parents to disinherit them. Treating children with equal bequests when all children are aware that one child has dishonored the parents or even abused or exploited them can detract from your legacy. To preserve and enhance your legacy, have your bequests represent your commitments and values, especially those that your natural heirs would recognize, respect, and honor. Unequal bequests among children may in special circumstances be the sound and proper course for preserving and promoting a legacy.

Disclosure

You may wonder whether to disclose your estate plan to your children or other heirs, especially in situations like the ones just discussed where you have planned unequal bequests based on sound rationales you’d expect your children or other heirs to appreciate. You may want to explain those rationales to your heirs to help them understand your intent, prepare for the outcome, and avoid surprise and confusion. Yet your disclosure may sow resentments, disrupt existing relationships, and discourage reform and renewal of those relationships that might otherwise have naturally occurred. Your disclosure may also cause complaints and campaigning that you’d rather avoid. You may also later decide to change your estate plan, which you might then have to once again justify. Generally, keeping your estate plan confidential, except for your spouse and perhaps your adult child personal representative, is the better practice. But you be the judge. You know your family. Just keep in mind their personalities and likely reactions, and take the best course to preserve and enhance your legacy among them.

Adoption

When planning bequests to children, the question may arise whether to treat your biological children differently from any adopted children. Your biological children may have expectations of a greater inheritance than adopted children, especially if you adopted children later in life or of an older age. Conversely, your biological children may expect or prefer that your adopted children receive the same shares as they receive, especially if you adopted before or around the time of having biological children, and adopted infants or very young children. The relative needs of biological and adopted children, and the relative quality of their relationships with you and with one another, may also be factors in any distinctions, just as discussed above with all-biological children. You be the judge, but be a wise judge, one who enhances rather than detracts from your legacy. 

Stepchildren

Similar questions apply to bequests made or not made to stepchildren. Your biological and adopted children may not appreciate that you would consider bequests to stepchildren, who have their own parents, or at least one parent (your spouse on your spouse’s remarriage to you), to provide for their inheritance. Your relationship with your stepchildren may also have been much shorter and not nearly as emotionally close or materially dependent as your relationship with your biological children. On the other hand, a stepchild whom you raised from a very young age and treated as your own child may have a substantial emotional attachment to you and could also have reasonable expectations of, and substantial needs for, an inheritance from you. Your spouse, the parent of your stepchildren, will also have expectations as to what bequest, if any, you make to your stepchildren relative to the bequests you make to your biological children. Consider these and any other peculiar factors when deciding whether to include stepchildren in your bequests. Children for whom you care in foster care generally have few if any expectations of inheritance, although once again, you be the judge. Your goal is to enhance your legacy consistent with your values and commitments. Breaking the traditional mold can either enhance or detract from your legacy, depending on your own family and circumstances.

Grandchildren

Testators who already have grandchildren when executing a will and estate plan have a natural desire to bless their grandchildren. One common way to do so is to make substantial enough bequests to one’s adult children to simultaneously promote the welfare and interest of one’s grandchildren. A key decision in that respect is whether to bequeath to children per stirpes, which is Latin for by branch, or only if the child survives the testator. A per stirpes bequest would mean that if the child dies before the testator dies, the deceased child’s grandchildren would divide the deceased child’s bequest. A per stirpes bequest preserves the bequest to the line of the deceased child. Each child’s line, in that case, would benefit. If on the other hand the deceased child has no children, the living children would divide equally the deceased child’s bequest. An alternative is to make individual bequests to grandchildren, which may be convenient and appropriate, especially if you have a small number of grandchildren and the number isn’t frequently changing. Bequests directly to grandchildren, though, runs that hazard of inadvertently omitting one or more late additions. Your will can provide for unnamed grandchildren born after the will’s date and before your passing. Give substantial thought to how to treat grandchildren. A substantial part of your legacy may depend on it. 

Others

You may certainly include other individuals in your bequests, whether related  to you or unrelated. Your siblings may be appropriate beneficiaries of bequests, especially if they were close to you throughout life, you have a substantial estate to disperse, and they have needs that your bequests could meet. Nieces and nephews, and cousins, could be appropriate beneficiaries on the same grounds. Look closely at your family relationships, and make bequests that honor your family and its relationships, values, and commitments. You may also make bequests to close friends, especially of items that they may appreciate sentimentally more than your family members would appreciate, such as the return of a special handmade or heirloom gift that they gave you. Beware of bequests to caretakers. Family members can have serious concerns over the undue influence of a caretaker over the testator or even the caretaker’s coercion of the testator, as probate laws recognize and will correct. Consult your estate planning attorney regarding gifts to caretakers, business partners, financial advisors, or others who, unlike close family members, are not the natural objects of a testator’s affections.

Charities

You may certainly also include charitable organizations, community foundations, private schools, and churches or other faith organizations in your bequests. When making bequests to charities, think carefully about how your family members with their own expectations of your bequests may feel about charitable bequests. If your family heirs would respect and appreciate your charitable bequests, then all the better. You still get to decide. It’s your estate to disperse. But your legacy may depend largely on how your family members view your last will and testament. Don’t make charitable bequests that dishonor your family members, if your family is your primary legacy. On the other hand, thoughtful and generous bequests to churches, schools, and other charitable, educational, and religious organizations can be an excellent way of enhancing your overall legacy, including for your family’s benefit. 

Alternatives

Bequests are not the only way that you can promote your legacy within your family and outside your family. Gifts while you are living may be a better course in some instances. Don’t overlook, for instance, the option of gifts to grandchildren while you live, even of funds that their parents would hold or invest. You might help grandchildren with their first motor vehicle or their college education or savings, with generous annual gifts, rather than waiting to give a single bequest. Your bequests can then go to your adult children for whatever further benefit they may convey to your present or future grandchildren. Gifts while you are living may also be more appropriate than bequests, for nieces, nephews, cousins, friends, and caretakers. Donations while you are living may also be more appropriate than bequests for your church, school, and other charities. Life insurance in favor of a business partner or other person with an insurable interest may also be an option. Use alternatives to handle incidental relationships so that your estate plan can remain a special legacy.

Reflection

What needs would your spouse have after  your passing, out of your estate? Are you able to make bequests to children, charities, or others, while still providing in your estate for your spouse? Do you have reasons or rationales to treat your children with different proportional bequests? Would your children respect those reasons and rationales? What thoughts do you need to give to bequests to stepchildren or adopted children? How would your biological children feel about bequests to those other children? Do you need to adjust your estate plan for your divorce or remarriage? How should you provide in your will and estate plan for your grandchildren? Would bequests to their parents, your adult children, adequately convey your love, care, and legacy to them? Can gifts to your grandchildren, siblings, nieces and nephews, and other relatives while you are still living simplify and clarify your estate legacy? Do you have a church, school, or charity that your legacy should honor with a donation while you live or with a bequest out of your estate?

Key Points

• Choosing your heirs may be your biggest legacy decision.

• Articulate your goals in making bequests, before deciding on them.

• Prioritize your spouse’s needs and expectations in your estate plan.

• Revise your estate plan after any divorce and on any remarriage.

• Your bequests to your children can be your greatest legacy act.

• Whether to treat children equally or equitably can be a critical decision.

• Disclosing your estate plan to your children can disrupt relationships.

• Carefully consider how to treat adopted versus biological children.

• Also carefully consider stepchildren versus biological children.

• Consider grandchildren bequests through your adult children.

• You may prefer gifts to other family members over bequests.

• Bequests to charities can be appropriate if not handled through gifts.

Read Chapter 14.