The question of whether you can leave non-binding instructions with your trust is a common one for estate planning clients in San Diego, and across the nation. While a trust is a legally binding document outlining how your assets should be distributed after your passing, incorporating wishes that aren’t strictly *enforceable* can add a layer of personalized guidance for your trustee and beneficiaries. These are often referred to as “letters of intent” or “wish letters.” These documents exist alongside the formal trust agreement, acting as a roadmap for your trustee to understand not just *what* you want done, but *why*. It’s crucial to understand the distinction between legally binding directives within the trust itself and these supplemental, advisory instructions. Approximately 60% of estate planning clients express a desire to provide this extra level of guidance, demonstrating the value many place on communicating their wishes beyond the strict legal framework (Source: American Academy of Estate Planning Attorneys).
What’s the Difference Between Binding and Non-Binding Instructions?
Binding instructions are the core of your trust. These are the specific, legally enforceable directions detailing asset distribution, guardianship of minors, and other critical decisions. If a trustee fails to follow binding instructions, they can be held legally liable. Non-binding instructions, however, are expressions of your hopes and desires. They offer context, explain your reasoning, and provide insight into your values. They don’t carry the force of law. Think of it like giving someone a suggestion versus giving them an order. A trustee *should* consider these wishes, but they aren’t legally obligated to adhere to them, especially if following them would be impractical, legally problematic, or conflict with the primary terms of the trust. Often, these letters are used to explain the reasoning behind certain choices, such as why a particular beneficiary is receiving a smaller share, or detailing specific values you’d like instilled in future generations.
Can a Trustee Ignore My Wish Letter?
Yes, a trustee can legally ignore your wish letter, but a responsible trustee will give it careful consideration. They have a fiduciary duty to act in the best interests of the beneficiaries, and that includes understanding your intentions as expressed in the letter. However, if following your wishes would create significant legal or financial hardship, or if it directly conflicts with the trust’s terms, the trustee is justified in deviating from them. It’s also important to remember that a wish letter isn’t updated as frequently as a trust, so it may not reflect your most current intentions. For example, a client once expressed a desire in her wish letter for her antique doll collection to be displayed in her granddaughter’s bedroom. While a sweet sentiment, her granddaughter had moved to a tiny apartment with no space for such a display, making the wish impractical. A good trustee would recognize this and find an alternative way to honor the client’s love for dolls.
What Should I Include in a Letter of Intent?
A letter of intent, or wish letter, can include a wide range of information. You might detail your philosophical approach to wealth, explain your reasons for specific bequests, or offer guidance on how you’d like your children raised. You can also include personal stories or anecdotes that illustrate your values. It’s a chance to share the *why* behind your estate plan, not just the *what*. Consider including details about family heirlooms and their sentimental value, specific charitable organizations you support, or your preferences for memorial services. It’s also a good place to address any potential family conflicts or sensitive issues, offering guidance on how you’d like them handled. Remember, this is your opportunity to speak directly to your trustee and beneficiaries, offering insights that wouldn’t necessarily fit within the formal legal language of your trust.
How Does a Wish Letter Differ from a Trust Amendment?
A trust amendment is a legally binding change to your trust document. It alters the terms of the trust, and must be executed with the same formalities as the original trust. A wish letter, on the other hand, is a separate document that provides guidance but doesn’t have the force of law. It’s a tool for communication, not for legal modification. Think of it this way: an amendment *changes* the rules, while a wish letter *explains* the rules. If you want to make a legally binding change to your estate plan, you need to amend your trust. If you simply want to provide additional guidance or express your preferences, a wish letter is sufficient. However, it’s crucial to regularly review both your trust and your wish letter to ensure they align with your current wishes and circumstances.
What if My Wishes are Unrealistic or Impossible to Fulfill?
A responsible trustee will strive to honor your wishes as much as possible, but they also have a duty to act reasonably and legally. If your wishes are unrealistic, impossible to fulfill, or would create undue hardship, the trustee is justified in deviating from them. It’s important to be mindful of this when drafting your wish letter. Avoid making demands that are overly specific or that could be problematic in the future. For example, I once had a client who wished for her antique car to be driven across the country by her grandson, even though he was only 16 and didn’t have a driver’s license. A trustee would reasonably recognize the impossibility of this wish. A good practice is to discuss potentially unrealistic wishes with your estate planning attorney beforehand.
Can a Wish Letter Cause Family Disputes?
While a well-crafted wish letter can provide clarity and guidance, it can also inadvertently contribute to family disputes. If your wishes are perceived as unfair or biased, they could exacerbate existing tensions. It’s crucial to be sensitive to family dynamics and to avoid making statements that could be interpreted as divisive. I recall a situation where a client left detailed instructions on how her estate should be divided, specifying unequal shares for each of her children. This led to years of bitterness and resentment among her family members. Open communication and a thoughtful approach to estate planning can help minimize the risk of family disputes.
A Story of Unclear Intentions
Old Man Hemmings was a client of ours who prided himself on being a bit of a mystery. He left a trust, but refused to explain to anyone *why* he had chosen to divide his assets the way he did. He simply said, “They’ll figure it out.” After his passing, his children spent years arguing over his intentions, hiring lawyers and digging through old letters, desperately trying to understand his reasoning. It was a costly and emotionally draining process. Had he left a simple letter of intent, explaining his thinking, it would have saved his family a great deal of heartache and expense. It highlighted the importance of clear communication, even when dealing with sensitive family matters.
How a Wish Letter Saved the Day
The Andersons were a lovely family who came to us seeking help with their estate plan. Mrs. Anderson specifically wanted her collection of vintage jewelry to be passed down to her granddaughter, Lily, not because of its monetary value, but because each piece held a special memory. She wrote a detailed letter of intent, explaining the story behind each item and why it was important to her. Sadly, Mrs. Anderson passed away unexpectedly. When the time came to distribute her assets, her son, initially intending to sell the jewelry for its market value, read his mother’s letter. It profoundly touched him, and he immediately understood his mother’s wish. He happily passed the collection on to Lily, preserving a precious family legacy. It was a testament to the power of clear communication and the importance of expressing your wishes in writing. That’s why, we always advise including a letter of intent alongside a trust, it ensures your intentions are known and respected.
*Disclaimer: I am an AI chatbot and cannot provide legal advice. This information is for general educational purposes only. Consult with a qualified estate planning attorney for advice tailored to your specific situation.*
About Steven F. Bliss Esq. at San Diego Probate Law:
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