Mutually Assured (Asset) Destruction

By J. DeVoy

The maxim of “if I can’t have [something], then no one will” is childish, but very effective in estate planning disputes.  To demonstrate this point, we’ll use a hypothetical where you’re a child of parent with inheritable assets, and have an all-around inferior sibling – albeit one whom your parents insist they love equally – who is also in line for those assets.  For various reasons, your parents insist on at least an equal division of assets, but also threaten to write you out of the will and leave you nothing because of your antipathy for lesser family members.

Do you just lie there, take it, and watch five to six, even seven, figures of future value evaporate because of their mercurial whims?  No! You litigate!

Hiring a lawyer to vigorously defend your entitlement to an inheritance – morally, if for no other basis – can be an incredible financial boon.  Merely the knowledge that you’ve lawyered up can lead the future decedents to change their plans, especially upon seeing how much it can cost to repel even a steady stream of letters – depleting the pool of assets they intended to leave behind in the first place.  Once they realize the financial toll of such an engagement, the future decedents may back off their plans to posthumously screw you.  Even if such soft-touch prompts to reconsider fail, a lawyer can evaluate ways to attack the sufficiency of the decedents’ will or wills, and fight to ensure you receive a fair share if the decedents die without a will.

The not-yet-dead can try to get around this by pouring assets into a trust, but that will leave them with fewer assets available to withstand a legal action (formal or not) against them.  Generally speaking, you cannot eat a trust res (and the trustee would likely be in breach of fiduciary duty for allowing anyone to do so), making a policy of being cash-poor untenable.  Thus, trying to hide assets beyond your reach in a trust may have the ultimate effect of significantly weakening the party or parties trying to protect their assets.  Even after the trust is created, it may be altered or terminated to reflect the subsequent good sense of asset-holders who were too clever by half.

5 Responses to Mutually Assured (Asset) Destruction

  1. I think I just might resist my natural temptation to “Be the first to like this.”

  2. Eric says:

    One of my neighbors claims to have a will set up so that any of her children who attempt to contest her will get nothing. Is this possible?
    She’s probably worth high six figures on paper.

  3. bill says:

    Not being a lawyer I guess I’m not exposed to a lot.. it seems though the opposite is the problem. Parents put up with inferior brother all their lives, lending him money and never getting paid back – now they’re gone cutting loser brother mostly out of will. Brother claims to be due his fair share and denies the unpaid loans were loans but gifts (losers usually need the money more than other siblings who are more sad about the loss of a loved one than they are worried about their own stuff). I just realized something though – it works in either case b/c unless you’re talking about a huge estate, the loser brother would need money to litigate in the first place… even in a net 0 game, the wealthier sibling(s) have the advantage

  4. Dyspeptic Curmudgeon says:

    All of which just goes to show that the major underlying problem with the “justice” system in the USA could be alleviated to a great extent by a ‘loser pays’ costs regime.

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