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NexSteps: Creating a will that takes into account a no-account son

NexSteps: Creating a will that takes into account a no-account son

Q: My husband and I have had our wills done and redone, but can't seem to get comfortable with the wording. We have read your column for years, and hope you can give us some ideas. Please do not use our names.

We have two children, a daughter who is married and has two children, and a son who has been divorced twice and has two children whom we seldom see. All of our grandchildren are in their teens, and we are in our mid-60's. It is our intention that the first of us to die will leave everything to the survivor. Our concern is what will happen when the second of us dies.

While our daughter is stable in her relationship with her husband and employment (she is a CPA), to be brutally frank, our son has continued to screw up from the time he was 16. He has had (and we think still has) drug and alcohol problems; has been arrested a number of times for DUI and drug possession; has had difficulty keeping a job; is generally unable to get along with people; has borrowed money from us over the past 20 years with promises of repayment; is not trustworthy; and goes for months without returning our calls or talking to us.

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Our wills, which have been prepared by several different lawyers, have either 1) disinherited our son totally, or 2) set up a trust with our daughter as trustee to pay him income and principal at her discretion. While we don't want to disinherit him, we believe that our relationship with him will never be better than it is today. We also are concerned that if we disinherit him, he will have no incentive other than to cause problems and contest our wills. If and when he gets any money, we believe he will use it to further his bad habits. And we believe we will be causing our daughter untold grief (he doesn't talk to her either) by giving her the responsibility of doling out money to him.

We know there must be a solution, but we've yet to find it. Any suggestions will be appreciated.

A: Given the complexity of your question and our limited space in which to try to answer it, we will devote this column and the next to give you some ideas.

First and foremost, we agree that to appoint your daughter as your son's trustee after the second of you dies would be a recipe for disaster that could -- and probably would -- plague your daughter for years. By making her your son's fiduciary, you would be placing obligations upon her that could -- and probably would -- get her sued by your son for a myriad of reasons, justified or not.

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Since no parent would want to leave a child a legacy of this kind, we urge you to seek out an independent corporate fiduciary, explain the situation, and, if you decide to create a trust for your son, include as much language in the trust as possible that will insulate the trustee from liability while, at the same time, making sure the trustee is held to appropriate fiduciary standards.

Second, the documents you want are not "canned" or "off the shelf," but must be customized to meet your special needs. Therefore, we suggest that you be prepared to pay a lawyer, who is in tune with your goals, more than what most may consider to be "standard fees." Such fees are too often associated with documents that are created through word processing programs by which names, and not much else, are changed from client to client.

First Published: October 15, 2006, 4:00 a.m.

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