The "I trust you" will

The problem: How much do you trust your loved ones to care for a special-needs beneficiary of a will? Probably not this much:

A client recently retained me about a will in which almost all of the estate was left to the testatrix' daughter-in-law (we'll call her Tina). The will itself contained no instructions as to how Tina was to use the money, but she had assured the testatrix (whom we'll call Alice) she would use it to care for her (Alice's) handicapped son, Ben. 

My client is Ben's cousin. She came to me with the question, "what can we do to make sure Tina uses this money on Ben's behalf?" 

The answer: we have to be very, very creative. And we'll likely go to court over the question. 

The reason: no amount of oral instructions or even writings outside your will can bind a recipient of property under that will as to how she (in this case, Tina) can use that property. As any law student can tell you: "the law does not countenance a gratuitous promise." In other words, promises are not legal contracts. Contracts only form when both sides of the bargain get something. 

"But wait a minute," you might be saying. "Tina does get something here. She's getting a large inheritance when she wasn't even the testatrix' child." 

And, unfortunately, that's wrong. Presuming Tina did promise to use the money on Ben's behalf, she's not getting anything other than the honor of being his trustee. (Leave aside for a moment the question of trustee's fees.)  She was simply making a gratuitous promise. It wasn't "give me some money, and I'll take care of Ben." Rather, it was "put some money aside, and I'll give it all to Ben."

The lesson: As always, estate planning should not be done without the advice of a seasoned estate planner. Using Tanner Pittman, LLC's estate planning methods, the above problem would never have formed.