There’s not a soul anywhere who hasn’t thought to themselves, “I wish that kid would just listen to me and trust that I know what’s right” when it comes to their children – whether they’re toddlers or adults with toddlers of their own. It’s just the way things are: we’re the parents and we know what’s best. Bring the legal aspects into the mix, things change, especially when it comes to writing a conditional will. A perfect example of what could have happened hit the news this week.
In mid-July, Phillip Seymour Hoffman’s will was released to the public. It’s also been a year this month since he died from a heroin overdose. For the most part, his will isn’t remarkable in how it differs from any other, but once you get to the part concerning his son, Cooper, things shift a bit.
Hoffman placed very specific requests (not commands, mind you) about where he would prefer his young son to be raised. He specifically mentions San Francisco, Chicago or New York. His reasoning was he wanted his son to be a part of a rich, cultural environment. Hoffman’s estate planning lawyer knew that he couldn’t demand it, but he also helped Hoffman get his point across of what he would like to see his son witness. It empowered Hoffman and because he trusted his legal advisor and his family, he didn’t have to worry about any kind of conditional will being challenged.
Sound Legal Advice Matters
Since there don’t appear to be any challenges from any party, the odds of there being an absence of trust designations or guardianship papers are slim. He clearly had sound legal guidance. After all, a will is designed to focus on material possessions, but for many, they use those material possessions as incentive for their survivors to rise up to whatever the deceased demands.
It’s little wonder, then, that some –if not most- of these demanding wills are challenged in court. While we’re free to define our will and overall estate plan in any way we choose, provided it’s legal, our goals should always be to not punish our loved ones if they don’t do it our way. Estate planning lawyers agree that you can provide incentives and even include legacy letters explaining why you want things done a certain way. To insert, “Do this or else” text into a will adds to an already grieving family.
Your Assets, Your Will, Your Choice
So why aren’t there laws that prevent these types of requirements for heirs? Frankly, the law sees any possession you’re outlining in your will as your property. You can do with it whatever you choose. The interesting elements come into the mix when there are undertones of racism or illegal stipulations – such as refusing to release an heir’s inheritance until he is initiated in some kind of illegal gang or group. One example includes a man’s will in Chicago that was unsuccessfully argued by one of those heirs who wished to marry someone outside his religion.
The young man’s grandfather stipulated that he would receive nothing if he married a non-Jew. The court agreed with the deceased grandfather and said there was no legal reason to lay aside the man’s final requests. It was his will, his money and his final wishes.
Avoid Conditional Will
The question is – what would happen if Seymour’s young son’s guardian refused to move to one of the three cities Seymour had requested? Had it gone past a “request” and was written as a “requirement”, it’s possible there would soon be a court battle looming in the distance. It’s just as likely Seymour at least put aside the lion’s share his son’s inheritance until he became a legal adult in case that did happen. We may never know for sure, but what we do know is there’s now a spotlight on this specific aspect of creating a will. There’s a fine line and often, it’s a judge who decides.
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Ellen LaPlante
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