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Trust and Wills and the Modern Family

Updated on November 13, 2014

Let us put out some sparks before they become wild fires

Sorry but this is not something you should leave without clear direction. It is totally unfair to leave it up to your survivors.
Sorry but this is not something you should leave without clear direction. It is totally unfair to leave it up to your survivors. | Source

What are we talking about?

Do we really know what a will is? Do we really know what a trust is? But more important can we handle death giving in a loving way? Can we really divide up our stuff among loved ones? Make no doubt this is a hard subject.

A traditional nuclear family makes it pretty easy. Everything goes to the surviving spouse and then equally among the children on the death of the last spouse standing. Now that is pretty straight forward and fair to everyone. Or is it?

And what of the two children from a previous marriage and two from a current marriage. And then the father dies and the step-mother and mother is left to handle it. Now that is a big problem.

Let us just discuss it so we can make up our own minds on how to best deal with the situations that can arise. First let us get a standard definition of what these things mean so we are on the right page. This is supposed to be a non-legal overview and so there is no advice here and the definitions are not legal speak.

Where do you stand?

Do you have any of these in your life?

See results

Just some cool music to listen to while schlogging through this subject

I hope that poll made you stop and think -- bet you never thought about your parents and a will together, except theirs.

Will: legal-dictionary.thefreedictionary.com/willWill. A document in which a person specifies the method to be applied in the management and distribution of his estate after his death

Trust: en.wikipedia.org/wiki/Trust_lawWikipediaIn common law legal systems, a trust is a relationship whereby property is held by one party for the benefit of another. A trust is created by a settlor, who transfers some or all of his or her property to a trustee. The trustee holds that property for the trust's beneficiaries.

If you look at it they are fairly simple devices and just common sense dictates what they are supposed to do. So drawing them up is not rocket science and surely not the cause for worry.

Contingencies that could occur are more a matter of logic and possibilities. But sometimes they present us with priorities that are difficult to deal with when we sit down to discuss it.

So just how do we discuss it? Yikes. Well here is the best way and it is still not the easy way, because there is no easy way. What does a dad do with two sets of his own children? And how does a step mom deal with whatever are the decisions.

Cultures vary greatly as to what tradition holds like daughters and sons and the order in which they were born.

Second marriages that are mixed have their own set of large problems.
Second marriages that are mixed have their own set of large problems. | Source

So here are some practical "mechanics" on how to approach the subject.

Sit down alone and write out what you want. Keep it to yourself for awhile and re-write it after thinking about it. Then go through it with a third party confidentially. Just to get their feedback and advice. I am not talking about a lawyer or someone who gets something from your will but a reasonably close "disinterested" party. See if they think it is fair to assert your position.

Let your spouse in on it but keep it to yourself for more time and suggest that your spouse do the same thing. Then you are ready to discuss it between yourselves. They will have differences.

Now you must deal with the differences. You can fight over it. Or you can try to work it out calmly with love. The big question is how do you divide it up between the children you both have and the children you have from a previous marriage.

Here is the best of all worlds when it comes to this. If the spouse with other children has been a supporting and responsible ex-spouse in the previous marriage and afterwards then there are basically three estates or if remarriage on both parts, four estates. In other words there really are two homes to be split up as far as children go, If you look at it this way then the divisions are from the separate estates or portions thereof.

So you would take the one spouse with four children and divide up that half so that each child gets 1/8 + what they get from the other spouses half, which could be none to 1/8. This could go on for any multipliers and even previous children from both sides of the marriage.

Note here that in community property states there really are just two estates but you can separate them in your calculations.

Somethings we just must do and all the whining in the world will not make them go away.

No matter what decisions we make someone will be upset.
No matter what decisions we make someone will be upset. | Source

Trusts in our scenario.

Trusts are more complicated legal constructs. They should have two purposes in general. To legally avoid taxes and to preserve estate assets during a certain time period. You see if one spouse dies before the other the assets are in trust and there is no inheritance tax or distribution until the surviving spouse dies.

This also means that as it should be the surviving spouse enjoys the fruit of the marriage until they pass on. Of course sometimes it all gets used up before death and that is sometimes a bummer but as it should be. If it is all used up and there is still long term care needed that can be disastrous for families.

What it really takes.

A fair assessment of what you have and a fair assessment of what each child needs. You may even decide on giving unequal portions because of need. For instance one child might have 4 children of their own and another spouse might be rich and childless. Children may all be equal in the eyes of their parent but not equal in their needs. You may also have a spendthrift child where giving them money is just plain foolish.

Just like life, if the distribution of your estate is done in loving thoughtfulness you really cannot go wrong. I suggest if it is just too much for you then get over it and get it done anyway. Once it is done you can sleep better and not even think about it.


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    • billybuc profile image

      Bill Holland 2 years ago from Olympia, WA

      I needed this kick in the butt. We are not prepared in these matters, but you best believe we will be soon. Thanks my friend.

    • Ericdierker profile image
      Author

      Eric Dierker 2 years ago from Spring Valley, CA. U.S.A.

      We are dealing with it so it was the impetus for this hub. Thanks Bill and good luck -- both in dealing with it and outliving it ;-)

    • dilipchandra12 profile image

      Dilip Chandra 2 years ago from India

      You dealt with the topic so well. I really have to appreciate your good analysis and presentation. Well, probably i may not need this or might perhaps after after and after long long long time HEHEHE. Anyway, thank you friend for this great hub.

    • Mel Carriere profile image

      Mel Carriere 2 years ago from San Diego California

      Congratulations on getting your law degree. This is probably the best advice I have seen on this subject but I still foresee fights and mayhem. Really the best advice is to be poor like me so there is nothing to fight over. Great hub!

    • ChitrangadaSharan profile image

      Chitrangada Sharan 2 years ago from New Delhi, India

      Very useful and practical advice!

      One day we have to decide about the distribution of 'will' and 'trust'.

      I liked your line, "Somethings we just must do and all the whining in the world will not make them go away."

      Very nice and informative hub, voted up!

    • DDE profile image

      Devika Primić 2 years ago from Dubrovnik, Croatia

      Informative and very important.

    • Ericdierker profile image
      Author

      Eric Dierker 2 years ago from Spring Valley, CA. U.S.A.

      dilipchandra12 thank you for visiting and commenting. You are lucky if you do not need one yet -- because that is the best time to do one, then you can just modify it and it is much easier.

    • Ericdierker profile image
      Author

      Eric Dierker 2 years ago from Spring Valley, CA. U.S.A.

      Mel, thank you for dropping by. Mine is easy too. Whatever my wife wants!

    • Ericdierker profile image
      Author

      Eric Dierker 2 years ago from Spring Valley, CA. U.S.A.

      Thank you much ChitrangadaSharan, it is good of you to drop by and leave a note. Do your deciding sooner rather than later.

    • Eiddwen profile image

      Eiddwen 2 years ago from Wales

      So interesting and very useful.Eric. Voted up and wishing you a great day.

      Eddy.

    • Ericdierker profile image
      Author

      Eric Dierker 2 years ago from Spring Valley, CA. U.S.A.

      Hi Devika, thanks much for dropping by and leaving a positive comment.

    • Ericdierker profile image
      Author

      Eric Dierker 2 years ago from Spring Valley, CA. U.S.A.

      Eddy it is always nice to hear from you over on my hubs. Thanks for your great writing on Bill's Challenge today.

    • denise.w.anderson profile image

      Denise W Anderson 2 years ago from Bismarck, North Dakota

      We don't realize how difficult this is until we have to sit down and do it! My husband and I went through it not too long ago, and it took us a while to figure things out. We have a daughter with disabilities that we are guardian over, and we needed to make provision for her care when we are gone, as well as determine what to do with all of our personal belongings. I like your idea of making a list of what we want by ourselves before talking with another person over the matter. That is what we had to do. We disagreed on a few important things, therefore, our wills are very different. If I go before my husband, he will get everything. If he goes before I do, we will divide up his musical instruments and tools among the children, as I will have no need for them! Once we are both gone, the majority of our assets will be held in trust for the upkeep of our daughter.

    • Ericdierker profile image
      Author

      Eric Dierker 2 years ago from Spring Valley, CA. U.S.A.

      Denise it sounds like you took the bull by the horns and dealt with it very well. Most people do not fair so well. Thank you for your great comment and addition to this hub.

    • JayeWisdom profile image

      Jaye Denman 2 years ago from Deep South, USA

      Excellent advice, Eric, even for people (most of us) who are not multibillionaires with huge estates for the survivors to fight over after the funeral. Very well-thought-out hub. Voted Up++ and shared.

      Jaye

    • Ericdierker profile image
      Author

      Eric Dierker 2 years ago from Spring Valley, CA. U.S.A.

      Thank you much Jaye, your comment is very appreciated.

    • Laura Schneider profile image

      Laura Schneider 2 years ago from Minneapolis-St. Paul, Minnesota, USA

      I made a will when I was 30—you're never too young. At the moment, I'm dealing with the death of one parent who remarried and the will was poorly written (by an attorney) and outdated. One should revisit their will every few years, in my opinion, and after any major life changes just to make sure that it reflects their current wishes. This could have avoided many problems in my case. Also, if you have your will written by an attorney (which is my opinion and advice) make sure that you ask lots of questions and get it explained to you in non-legalese, like this article does. Go over "what if" scenarios with the lawyer and make sure that you understand the consequences of everything in the will, especially trusts, which are tricky and expensive. Just my opinions, not legal advice!!

    • Ericdierker profile image
      Author

      Eric Dierker 2 years ago from Spring Valley, CA. U.S.A.

      Just wonderful advice Laura, it truly adds a great deal to the hub and I thank you. And thank you for coming by and reading.

    • MsDora profile image

      Dora Isaac Weithers 2 years ago from The Caribbean

      Thank you for sharing your wisdom concerning this unavoidable process of distributing property. We really shouldn't delay in the interest of the survivors. You triggered some very necessary thoughts.

    • Ericdierker profile image
      Author

      Eric Dierker 2 years ago from Spring Valley, CA. U.S.A.

      I am working on ours at this time so it was fresh and a lot more fun to write than a will ;-)

    • Dana Tate profile image

      Dana Tate 2 years ago from LOS ANGELES

      I have known many people who have gotten messed over by the surviving "step mom or dad. Somehow by the time they died there was no more family fortune or anything left to divide. I don't know what's fair, but this is what I would do. I would decide who gets what on my death. Everyone would get their own share as far as money or material things, When it came to the family home that would stay in the possession of the remaining spouse until their death then sold and the proceeds divided.

    • Ericdierker profile image
      Author

      Eric Dierker 2 years ago from Spring Valley, CA. U.S.A.

      Dana that is certainly one way to do it but it could cause major disturbance between spouses. On the other hand it is the most equitable way to do it.

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