Guidance in an estate plan does not have to be legally binding.
So sometimes, being imprecise is not a big deal.
For example, recipes often say “salt and pepper to taste,” giving the cook room for personal preference.
Other times, it can lead to incorrect results, like adding too much baking soda or baking powder to recipes.
Been there and done that.
According to a recent Kiplinger article titled “I Wish I May, I Wish I Might: Estate Planning’s Gentle Nudge,” most aspects of estate planning require specific language.
When an element is legally binding, clarity is critical.
Otherwise, settling your estate will be confusing and may open itself to estate battles.
While legally binding elements must utilize specific and explicit language, you can use precatory language like “I wish,” “I desire,” or “I hope” when simply encouraging particular actions to be taken (or not taken).
When might directions be less direct?
You may want to promote working with professionals.
Although your beneficiaries do not have to work with your professional advisors, you may choose to encourage them to preserve these working relationships.
You can let them know you wish for them to consult with your advisor or any financial advisor to navigate managing their inheritances.
Even if they do not choose to work with your advisor, the guidance serves as a reminder to seek professional wisdom.
You may want to encourage collaboration among your co-trustees.
People often name more than one successor trustee for their trusts.
Although your directions to your trustees may only require a majority opinion to take action, you may also want them to work collaboratively and constructively in their trust management.
While they do not have to have unanimous decisions, your guidance can encourage conversation rather than contention.
You may want to encourage your trustee to prioritize specific parameters.
Typically, a trust will grant the trustee some discretion in distribution decisions.
Often this flexibility is necessary to allow for the needs of beneficiaries to be met as they arise.
When making such decisions, you can provide guidance regarding matters critical to your values.
For example, you can underscore the value of educational pursuits while not limiting the options available to the trustees to meet the best interests of the trust beneficiaries.
Working with an experienced estate planning attorney is essential to communicating concrete and binding directions and simple guidance through precatory language.
Reference: Kiplinger (March 21, 2023) “I Wish I May, I Wish I Might: Estate Planning’s Gentle Nudge”