Many well-intentioned people want to help create a better future for their loved ones and families by using their wealth to incentivize or discourage certain behavior, and this often works its way into their wills. For example, a person might want to encourage his son to get help for a drug problem by making a gift in a will conditional upon the son entering a rehab facility. Or a person might want to direct her daughter’s life by making a gift conditional on entering a specific profession or even marrying a certain person. Such attempts to direct the choices made by another person via a conditional gift in a will, while perhaps noble (at least in some cases), run a high risk of failing to achieve their intended effect, and an estate planning professional can provide advice on how best to actually provide the future you want for a loved one.
Many Conditional Gifts Are Not Upheld By Courts
Conditional gifts in wills present a number of challenges. First off, American courts have a long history of pushing back on what are called “deadhand provisions,” or, in other words, attempts to control another person’s use of property after the donor has died. That does not mean such conditions are automatically invalidated, but courts will find ways to do so and may be biased in that direction, especially where the provision appears to contradict public policy. For example, courts do not generally look kindly on gifts directing who a person should marry or what religion he or she should practice.
Even if the court does honor the provision, enforcing it becomes a whole other matter. A court may be unwilling to devote significant resources to making sure your nephew does indeed attend your alma mater or that your daughter visits her grandparents.
Trusts Are a Better Option For Making “Conditional” Gifts
By creating a living trust or testamentary trust, you will be in a much better position to achieve the outcomes that you are looking for in providing for your beneficiaries in ways that you believe will honor them and your legacy. In a trust, you can appoint a trustee who will oversee the property in a trust and create terms which will direct that trustee to devote property to a specific cause such as college, rehab, international travel, charitable work and so on.
A trust can also take effect now (as opposed to after your death, as is the case with a will) so that you can begin the process of making focused contributions to your loved ones while you are still alive. Speak with an experienced estate planning attorney about creating a trust that can make a positive difference in the lives of your loved ones.
Work with a Pasadena Estate Planning Attorney Today
Christopher B. Johnson is an estate planning attorney in Pasadena, CA who has helped thousands of individuals and families over the past 18 years in creating and reaching their estate planning objectives, including the creation of new wills and codicils. Schedule a consultation with him today to discuss your estate planning goals.