Probate & Trust Law Section Conference Manual ... - Minnesota CLE

problems in a document but so can attorneys who dabble in estate
planning.
6. Coordination of Dispositive Instruments. If the drafting attorney is
unaware of all of the different instruments which may give a client
dispositive control over property, such as a power of appointment, or
special ways in which certain assets may be titled such as joint tenancy or
P.O.D. the client’s wishes as to the distribution plan when he or she dies
can be affected. Not considering these issues can create significant
problems as well if the client should become incapacitated and there is not
clarity around which assets the client desires to be used for his or her care.
Similarly, if there are multiple trusts for the beneficiaries of a client’s
estate plan, whether created by the client or others, a failure to coordinate
the distribution standards or the ages at which distributions are but several
of the many possible areas where conflicts can arise in the future and,
perhaps, the intentions of the client are not met.
7. Flexibility v. Certainty. For even the most sophisticated planner there is
always a tension in the documents that are drafted between having
certainty in the effect of the document language and flexibility to fulfill
the intent of the testator or grantor in light of changing circumstances
between the time a document is drafted and when it is administered.
Everyone who has practiced for any period of time has seen situations
where a document’s rigidity has caused problems for a beneficiary and as
many instances where intended flexibility has resulted in the intentions of
the grantor to be subverted. While a court proceeding is frequently an
option to resolve issues regarding language in a document, the
circumstances that lead to the need for court involvement will generally
mean that a disagreement among beneficiaries that may have
consequences beyond the will or trust itself has occurred that could,
perhaps, been avoided by more thoughtful drafting.
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