Ask the Probate Judge—Choosing Will & Trust Beneficiaries
Rudd, appeared May 8, 2003, Albuquerque Journal, Business Outlook
Reprinted with permission
Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.
Q: My adult children are squabbling over their inheritance from me, and I'm not dead yet! I would like to leave the bulk of my estate to non-profit charities. Is there a way I can circumvent lengthy court battles? I'm single, if that makes a difference. S.K., Albuquerque
If you are single, you may leave your assets to whomever you wish, as long as you do not have minor children who depend on you for support. You have no legal obligation to leave your assets to your adult children. But you MUST create a valid will or trust that clearly states your intent.
Many parents leave their assets to their children. Other parents do not get along with their children, or the children are wealthy and do not need the assets. The parents may instead select grandchildren or other relatives, friends, a church, synagogue, educational institution, or favorite charity as recipients.
New Mexico law contains provisions about omitting children born after a will is made. The law is silent about omitting children born before the will is made. Most attorneys recommend making any omission very clear in your will or trust, and I agree with them. Do not be too detailed; a simple statement such as, "I specifically intend to omit my children A, B, and C as beneficiaries of this will (or trust)" should be sufficient.
Your will or trust should clearly identify the charities you wish to benefit, including names and complete addresses. You might also contact the charity beforehand and ask if it would like other information included in the bequest. You should state what happens if that particular charity no longer exists at your death, perhaps designating an alternate charity or recipient.
Some people may make bequests to universities for scholarships or other uses. To create a scholarship earmarked for a particular purpose, the language in your will or trust should specify the name and address of the university or school, the name of the scholarship, what department or school the scholarship is for (such as nursing, engineering, education, arts and sciences, medical school) and the criteria that should be used to choose recipients of the scholarship monies (such as academic standards, financial need, or other criteria).
If your will or trust omits your children, the children could try to contest the document in court. Be sure to choose a knowledgeable attorney to draft your will or trust. Your will or trust should withstand a court challenge if:
the document includes language that names the children and states that you specifically intend to omit them;
you were "of sound mind" when you made the document;
you created the document "of your own free will;" and,
the document was properly executed.
© 2003, Merri Rudd & Albuquerque Journal, All Rights Reserved