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Will or trust?

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Cutie Pie 156

Junior Member
What is the name of your state (only U.S. law)? New York

I am in a second marriage. My wife and I do not have children. I am estranged from my adult children (two sons) from my first marriage. How can I ensure that all my/our assets remain with my wife after my passing and that this decision cannot be challenged by my children? We originally had a will with a QTIP trust prepared and after consulting with another attorney, we were told that my children could contest the will, sue the estate, tie up assets that my wife would need to live, and ultimately, end up with all the assets. It was this second attorney that suggested a revocable trust instead, but we are not familiar with how this works on a daily basis (like does the Trustee have to sign off on all withdrawals of assets that are in addition to daily living expenses?) and we are afraid that our life would not be our own. We are also uncertain if a revocable trust could still be challenged by my children (they are very agressive and feel entitled and I know they would try to go after everything). What is your advice?
 


Part of your estate planning should include passing assets outside of a will - for example, insurance policies and 401ks should have your wife listed as a beneficiary. Real estate should be appropriated titled so that she receives it on death as well.

A revocable trust can be easily administered, with you and then your wife as a Trustee. I assume that someone other than your children will be the beneficiaries; if that it the case, there are many options (chartable remainder trusts, etc.) which may benefit a charity as well as provide for your wife. If your children are not the beneficiaries, it may make it more difficult for them to challenge the trust (they would have no standing to do so, as they will not benefit). However, trusts are also subject to legal challenge if they are determined, so you'll need to make sure you use an experienced attorney to properly draft the trust and provide you with guidance as how to be the trustee.
 

curb1

Senior Member
You had a question about how the trust changes everyday financial dealings. Once your assets are titled to the trust (no a big deal), you will know no difference. Taxes are no different. Bank accounts are no different, except it might say your family name of the trust on the checks.

Or, depending on your assets, much can be passed to your wife as mentioned in previous post and won't even go through a will.
 

Cutie Pie 156

Junior Member
Thanks for your response. Just wondering what you mean by the following: "...trusts are subject to legal challenge if they are not determined..." - can you please explain that?

Thanks!

Part of your estate planning should include passing assets outside of a will - for example, insurance policies and 401ks should have your wife listed as a beneficiary. Real estate should be appropriated titled so that she receives it on death as well.

A revocable trust can be easily administered, with you and then your wife as a Trustee. I assume that someone other than your children will be the beneficiaries; if that it the case, there are many options (chartable remainder trusts, etc.) which may benefit a charity as well as provide for your wife. If your children are not the beneficiaries, it may make it more difficult for them to challenge the trust (they would have no standing to do so, as they will not benefit). However, trusts are also subject to legal challenge if they are determined, so you'll need to make sure you use an experienced attorney to properly draft the trust and provide you with guidance as how to be the trustee.
 

Cutie Pie 156

Junior Member
Thanks for your response, Texas Poo. Just wondering what you mean by the following: "...trusts are subject to legal challenge if they are not determined..." - can you please explain that?

Thanks!
 

TrustUser

Senior Member
if the husband and wife have a revocable trust with both of them as trustees, the kids have less than a snowball's chance in hell of WINNING any contest.

and any lawyer is gonna know this. so there would be no lawyer willing to take the case on a percentage basis, which means the kids are gonna have to cough up lawyer fees just to get a case started, which they will be told they have no chance to win.
 

anteater

Senior Member
if the husband and wife have a revocable trust with both of them as trustees, the kids have less than a snowball's chance in hell of WINNING any contest.
About the same chance as winning a contest of a well-drawn will.

Often the point of a contest is not "winning." The point is making life miserable and expensive enough to get a settlement.
 
Ant is correct on both questions - interpreting what I wrote (thanks!) - and about the point of a trust contest. I've seen many an attorney take a trust challenge just to force a settlement to avoid the cost of drawn out litigation. Again, OP, choose an experienced lawyer - a few dollars spent now are well worth it to minimize trouble later.
 

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