Wording in a will or trust which allows a named person to decide where your property and money should go after your death (instead of you making that decision ahead of time) is called “precatory” language.  An example is the recent Florida case of Cody v. Cody, where Earler Martin’s will left his home, and the rest of his estate, to one of his three stepsons, “to divide between [himself and his brothers], as he sees fit and proper.”  Earler’s wish was probably that the inheriting stepson, Buford, divide up the home and other property equally between himself and his brothers.  However, the words he chose to express that desire defeated that intent.

Buford’s brothers challenged the way Buford was handling the estate, asserting that there should be a division into three equal shares.  The court disagreed, stating that the language in Earler’s will left it entirely up to Buford to decide how to divide Earler’s property, including the discretion to make no division and keep all the property himself.

The bottom line is that wills and trusts must be carefully drafted to ensure that they carry out your wishes.  You can allow your trusted helpers some flexibility and discretion in taking care of your loved ones after you are gone, but it must be done the right way.  If you are interested in learning more about safely building flexibility into your estate plan, you are welcome to attend one of our monthly “Truth About Estate Planning” workshops.

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