Updating Estate Planning After a Dementia Diagnosis

A diagnosis of Alzheimer’s or another form of dementia is life changing. While focusing on immediate medical needs and emotional support is natural, legal planning is equally important. One of the most crucial steps you can take after a diagnosis is to meet with an elder law attorney to review and update your estate plan, especially your health care directives.

Without clear legal documents, your loved ones may face difficult decisions without knowing what you would have wanted. Early legal planning can ensure that your wishes are followed and reduce the burden on your family.

What Is an Advance Directive and Why Is It Important?

An advance directive is a legal document that outlines your healthcare preferences if you are unable to communicate your decisions. These documents help guide your doctors and your family during emergencies or in the late stages of a disease, when choices about life-sustaining treatment may be necessary.

There are two main types of advance directives, which may vary in name by state:

Living Will: Specifies the types of medical treatment you would or would not want, such as resuscitation, feeding tubes, or ventilators.
Durable Power of Attorney for Health Care: Appoints a trusted person, also known as a health care proxy, to make medical decisions on your behalf if you’re no longer able to do so.

What Is a Dementia-Specific Directive?

A dementia directive is an add-on to your traditional advance directive. Because dementia is a slow-moving disease that affects thinking, memory, behavior and personality over time, standard advance directives may fall short. A dementia-specific directive allows you to express your wishes for care at different stages of the disease—mild, moderate and severe. This document outlines what kinds of treatments you would want, or not want, at each stage of your cognitive decline.

For example, you might request all medical interventions during the early stages but prefer comfort care only in the final stages of your illness. Making these decisions in advance helps relieve loved ones of the stress and uncertainty of trying to guess your wishes during emotionally difficult times.

How an Elder Law Attorney Can Help You Prepare for Incapacity

An elder law attorney can guide you through the complexities of legal planning after a dementia diagnosis. They understand the medical, legal and emotional aspects of aging and incapacity and can help ensure that your documents reflect your current and future needs.

Why Early Planning for Dementia Matters

Time is of the essence after a dementia diagnosis. Legal documents must be signed while you are still legally competent to make decisions. If you wait too long, you may be unable to legally execute documents, leaving your family with limited options and potentially triggering court involvement through guardianship or conservatorship proceedings.

Starting the Conversation with Loved Ones

Advance care planning is not just about filling out forms—it’s also about open and honest conversations. Talk with your family about your diagnosis and what kinds of care you would prefer in the future. Share copies of your directives with them and your medical providers.

Let your health care proxy know where your documents are kept and how you would like them to act on your behalf. These discussions can help prevent confusion, guilt, or conflict during times of crisis.

Speak with an Elder Law Attorney to Plan Now for Dementia

If you or a loved one has been diagnosed with dementia, now is the time to act. Contact our elder law office to schedule a consultation. Our team can help you update your existing health care directives or create a comprehensive estate plan with dementia-specific guidance.

Legal planning after a diagnosis doesn’t just protect your rights—it brings clarity and confidence to everyone involved. Ensure that your voice is heard, even if you cannot speak for yourself. Don’t wait until it’s too late—secure your future care today.

Key Takeaways

Alzheimer’s and other dementias are progressive diseases that affect a person’s ability to make decisions over time.
Early legal planning is essential after a diagnosis to ensure that your wishes for care and finances are documented.
Dementia-specific directives add clarity by outlining care preferences at various stages of the disease.
An elder law attorney can help create or update your estate plan to reflect your current and future needs.

References: National Institute on Aging (NIA) (May 1, 2025) “Planning After a Dementia Diagnosis” and ElderLawAnswers (May 15, 2025) “Why Estate Plans Need Dementia-Specific Advance Directives”

What Is Gifting in Estate Planning

There are several ways to decrease the size of a taxable estate, all while minimizing taxes to your estate and heirs. A recent article from Investopedia, “Tax-Smart Giving: How to Gift $1M Without the IRS Calling,” says the federal gift tax is applied when one individual transfers property to another and doesn’t receive anything in return.

A gift can be any transfer of funds, property, or assets, including cash gifts, loan forgiveness, or the sale of real estate for less than its market value. You may also be able to make an interest-free loan as a gift. An important note: check with your estate planning attorney to be sure any gifts align with your overall estate plan.

Who pays taxes on a gift? The federal gift tax is paid by the person giving the gift, aka the donor, and not the recipient. A portion of the value of all gifts is tax-free. In 2025, the exclusion is generous—$19,000 per person per year. A gift can be made to as many people as you want to give a gift to. Married couples may make a gift of up to $38,000 tax-free.

Unless your estate is worth more than $13.99 million in 2025, chances are you don’t have to worry about gift taxes. Annual gifts made during your lifetime are worth more than the exclusion for the applicable year, allowing for even more generosity. The gifts can be carried over to the value of your estate, making your entire lifetime gift and estate tax exclusion $13.99 million.

One caveat: the IRS should be advised annually of any non-exempt portion being carried forward, using IRS Form 709. File the form even if you don’t owe any gift taxes. This includes making gifts with a spouse, making a gift to a non-U.S. citizen spouse, or making a gift of future interests. Some people prefer to file a Form 709 to help them track their gifting, while others consider the form a minor detail to prevent unanticipated issues.

For tax planning, you may want to give as much as possible before December 2025 ends. Some spouses give the same individual $19,000 on December 31 for one year, then make the same amount almost immediately after New Year’s Day. This is a per-year limit, making it possible for a married couple to gift $76,000 without carrying any portion over to the following year.

There’s another reason to use the lifetime exclusion. A portability provision allows married couples to transfer any unused portions of the $13.99 million lifetime gift and estate tax exclusion to a surviving spouse.

Keep in mind that some gifts are not considered gifts. If you are writing checks for tuition or medical care, those are not considered gifts. The only way around this would be to write checks to the family members and have them use the money for tuition or medical care.

The current federal tax rate on gifts and estates is 40% in 2025. If you neglect to fill out a Form 709 and exceed the limit, you’ll have to make a sizable gift to the IRS.

Speak with your estate planning attorney and CPA about how to use these various limits to minimize your tax liability and enhance a legacy for loved ones.

Reference: Investopedia (June 1, 2025) “Tax-Smart Giving: How to Gift $1M Without the IRS Calling”

How to Protect Elderly Parents from Scammers

Thieves and scammers are increasingly skilled at devising ways to swindle seniors out of their life’s fortunes, according to a recent article from the Hendersonville Standard, titled “Protect yourself and your loved ones from scammers and opportunists.” Sadly, we must worry about lonely grandparents being targeted by online romance scams. However, this is a real threat today. Fortunately, an estate plan created by an experienced estate planning attorney can provide strong guardrails against fraud and theft.

A living trust is one of the most effective ways to protect assets. Unlike a will, which doesn’t become effective until after a person dies, the living trust becomes active immediately upon its execution. A trustee or co-trustee can manage and protect assets in the trust while the original owner is still living. This is especially important in the case of incapacity.

Trusts help in multiple ways:

The trustee or successor trustee can take over if necessary.
A professional fiduciary may be named if no family members are willing or able to serve.
A trust protector or trust committee can be created with the authority to replace or remove a trustee without needing to bring the matter to court.
Amendments may be made if needed to qualify for Medicaid or gain tax advantages.

There are many different types of trusts. Therefore, you should speak with a qualified estate planning attorney to determine which is the right one for your situation.

There are other ways to protect vulnerable people from scammers. Their bank and financial advisors should have the ability to add a trusted contact—usually an adult child—to their accounts and ensure that they are alerted in case of large or frequent withdrawals.

Have a Power of Attorney and Medical Power of Attorney created while the parent is still competent. These documents allow a trusted person or people to step in and handle your legal, financial and health matters if the parent is unable to.

A smart step to take: Use the Social Security Advanced Designation tool to name a trusted person as a representative payee and do this before it’s needed.

If you suspect foul play, have your Social Security numbers frozen with all three credit bureaus, including Equifax, TransUnion and Experian. This can be done to prevent further identity theft.

A scam is always one click away in today’s world. However, having the right legal tools in place before they are needed will protect you and your loved ones. Talk with your estate planning attorney today to protect your tomorrow.

Reference: Hendersonville Standard (May 29, 2025) “Protect yourself and your loved ones from scammers and opportunists”

Creating Wealth Across Generations with Estate Planning

Estate planning is something everyone needs to do, regardless of the total value of their estate. Having a clear plan in place is the only way to ensure that property, personal possessions and investments are inherited by the people you love. If your goal is to help your family build wealth, this is especially important, according to an article from Forbes, “Building Generational Wealth: How to Ensure Your Assets Last.”

Without a last will and testament, the state decides who should receive property based on the intestacy laws, which are not likely to reflect your wishes. When Prince died without a will, it took many years to untangle his estate, not to mention the millions paid in federal and state taxes.

For parents, the most important decision in crafting a will is deciding who will be their children’s guardian and naming someone to take care of their finances in case of incapacity.

The myth that trusts are only for ultra-wealthy individuals is starting to fade, as more people understand how trusts work. Trusts provide a way to control distribution over time, building a legacy and protecting assets from creditors as well as spendthrifts. With a trust, you can create long-term strategies to distribute assets over multiple generations.

Family conflict is recognized as one of the most significant challenges to creating a successful estate plan. Open and honest conversations about the parents’ vision for their inheritance and understanding the reasons behind their decisions can help avoid conflict after they pass away. For some families, this is an ongoing discussion, while for others, it may be helpful to have the entire family meet with an estate planning attorney in an office setting.

Wealthy parents often worry about children squandering their inheritance. Using trusts can set restrictions on how inheritances are spent and control their distribution. Another reason to consider trusts for an estate plan: money kept in a trust cannot be attached in case of a divorce or debt. Assets can be directed to be spent only on health, education and maintenance.

Estate planning isn’t just about death. It’s also about protecting you while you’re living. An estate planning attorney will help create Power of Attorney documents so you can decide who you want to take over your finances if you become incapacitated. Healthcare documents allow you to name a person to be involved with your medical care, making decisions and talking with doctors. Without healthcare documents like a Healthcare Proxy, HIPAA Release Form and Living Will, your family won’t be able to talk with doctors, make crucial medical decisions, or know what you would have wanted if you weren’t able to speak to convey your wishes.

A consultation with an experienced estate planning attorney is the first step in creating a plan to establish a legacy. It takes some time, so start by making an appointment. Your future self and your family will be grateful.

Reference: Forbes (June 3, 2025) “Building Generational Wealth: How To Ensure Your Assets Last”

When Should Special Needs Planning Start?

Raising a child with a disability involves both day-to-day caregiving and long-term planning. From educational support to healthcare access, parents often juggle multiple responsibilities simultaneously. However, one of the most important—and frequently delayed—tasks is planning for the child’s financial and legal future.

Special needs planning includes creating legal structures to manage assets, arranging care beyond the parents’ lifetime and protecting eligibility for government benefits. These efforts can be overwhelming, especially when a child is young. However, the earlier families begin, the more options and flexibility they have to build a secure and stable future.

Early Childhood: Building a Foundation to Support Your Special Needs Child

Special needs planning doesn’t have to begin with complicated legal documents. In the early years, it often starts with education and medical advocacy. Parents learn about their child’s diagnosis, explore therapy options and understand what support systems may be available.

This is also a time to begin understanding government programs, such as Supplemental Security Income (SSI), Medicaid and early intervention services. Knowing the eligibility criteria for these benefits helps guide future decisions, such as how much money can be gifted to a child without affecting benefits.

By the time a child enters school, parents should consider how a long-term care plan will eventually take shape. While legal tools may not be necessary immediately, having a basic outline can help reduce uncertainty.

Adolescence: Preparing for Transition

During the teenage years, special needs planning becomes more urgent. At age 18, a child is considered a legal adult, regardless of disability. That means parents no longer have automatic authority to make decisions about healthcare, finances, or education.

To maintain involvement and provide protection, families may need to:

Establish a guardianship or pursue less restrictive alternatives, like supported decision-making agreements.
Create a durable power of attorney or healthcare proxy if the child can sign legal documents.
Begin applying for adult benefits, such as SSI or Medicaid.

This is also the right time to consider drafting a letter of intent, which outlines the child’s routines, preferences, care needs and long-term goals. Although not legally binding, this document can serve as a guide for future caregivers and trustees.

Adulthood: Legal and Financial Tools

Once a child turns 18, legal and financial planning becomes essential. A core part of this plan is establishing a Special Needs Trust (SNT). This tool enables families to set aside money for the child’s benefit without jeopardizing eligibility for government assistance.

Funds in a special needs trust can be used for housing, education, recreation, therapies and other non-covered expenses. The trust is managed by a trustee, who can be a family member, a professional, or an organization.

There are two main types of SNTs:

Third-party trusts, funded by parents or relatives
First-party trusts, funded with the child’s own assets (such as an inheritance or legal settlement)

Creating a trust during the parents’ lifetime ensures that it is structured properly and gives time to choose the right trustee. It also allows families to plan for continuity of care after the parents are no longer able to provide direct support.

Estate and Special Planning Integration

You should fully integrate special needs planning with your parents’ estate plan. Steps to completing this integration include:

Naming the special needs trust as the beneficiary of life insurance or retirement accounts
Avoiding outright gifts that could disqualify the child from benefits
Updating wills to reflect the care plan and appoint guardians

An elder law attorney can help coordinate all these elements, ensuring that legal documents work together to protect the child’s future. Without proper planning, even well-intentioned gifts can cause serious consequences.

Key Takeaways

Start early to stay flexible: Beginning in childhood allows time to adjust plans as needs change.
Age 18 is a legal turning point: Guardianship, powers of attorney and benefit applications must be addressed.
Special needs trusts protect assets and benefits: These tools provide financial support without disqualifying the child from aid.
Planning must include long-term care and support: A well-rounded plan accounts for daily needs, housing and future caregivers.
Estate plans must align with special needs planning: Avoiding direct inheritance and naming the trust as beneficiary prevents costly errors.

Reference: Special Needs Alliance (April 3, 2018) “How to Get Started with Special Needs Planning”

How Does Asset Protection Planning Work?

Life can be unpredictable. A sudden illness, accident, lawsuit, or long-term care need can threaten everything you’ve worked hard to build. Asset protection planning is the process of legally structuring your finances to minimize that risk and preserve what matters most.

Contrary to popular belief, asset protection isn’t about hiding money or avoiding obligations. It’s about using legal tools—like trusts, business entities and careful titling—to separate personal and at-risk assets and ensure that your estate plan holds up under pressure. Whether you’re concerned about future healthcare costs or protecting your children’s inheritance, a well-designed plan provides stability in uncertain times.

Why Asset Protection Planning Matters

Anyone can be vulnerable to unexpected financial loss. A serious illness could trigger overwhelming medical bills. A car accident might lead to liability beyond your insurance limits. Owning a small business or rental property can expose your personal assets to lawsuits.

Even family conflict, such as divorce or disputes among heirs, can jeopardize your financial legacy if your estate plan lacks safeguards. Asset protection strategies help shield property, retirement savings and personal investments from these potential threats.

For retirees, it also plays a vital role in long-term care and Medicaid planning. Without proper planning, you may be forced to spend down most of your savings before qualifying for care benefits.

Common Asset Protection Tools

Asset protection begins with identifying what you own, how it’s titled, and where the risk lies. From there, various legal tools can be used to insulate assets.

One of the most common is the irrevocable trust. Unlike a revocable trust, which allows you to retain control, an irrevocable trust transfers ownership of assets to a trustee. Done properly and early enough, this removes the assets from your taxable or Medicaid-countable estate. These trusts are frequently used to:

Protect a home or savings from long-term care costs
Provide for children without exposing their inheritance to creditors
Isolate assets from divorce proceedings or lawsuits

Another tool is the use of limited liability companies (LLCs) for rental properties or business interests. This separates your personal wealth from business-related risks. In some cases, transferring property to a spouse or adult child can also serve as a protection strategy. However, these steps must be carefully timed to avoid unintended consequences.

When to Start Asset Protection Planning

The most effective asset protection happens before there’s a problem. If you wait until a lawsuit is filed or a health crisis strikes, your options may be limited. Courts can reverse transfers that appear to be made with the intent to avoid creditors, so timing and intent matter.

Planning should ideally begin before retirement or when a need for long-term care is anticipated. Waiting too long may trigger “look-back” penalties that impact Medicaid eligibility.

Working with an estate planning attorney ensures that your actions are legal, strategic and tailored to your specific circumstances. Every state has different laws around creditor protection, trust formation and Medicaid planning, so guidance from a local professional is essential.

Asset Protection and Your Estate Plan

An effective asset protection plan should be integrated into your overall estate plan. That means aligning wills, powers of attorney, trusts and beneficiary designations. If these documents are outdated or inconsistent, your efforts may fall short.

Clear planning not only protects assets but also avoids confusion among heirs, minimizes the risk of probate disputes and ensures that your legacy passes as intended.

Key Takeaways

Asset protection planning prevents loss: Legal strategies shield savings, property and retirement funds from lawsuits, creditors and long-term care costs.
Trusts are powerful tools: Irrevocable trusts remove assets from your ownership, reducing exposure while maintaining control over distribution.
Timing is critical: Planning before a crisis avoids penalties and ensures full protection.
Business owners and retirees face unique risks: LLCs and Medicaid planning tools help manage liability and care expenses.
A coordinated estate plan is essential: All documents must align to protect your wealth and preserve your intentions fully.

References: Justia (October 2024) “Asset Protection Under the Law” and NerdWallet (Oct 18, 2023) “Asset Protection: How It Works and Strategies”

Zappos Founder’s Will Is Discovered: What Now?

This new development in the Hsieh estate saga presents two estate planning lessons: make sure your executor and loved ones know where your estate planning documents are located and have a successor executor in case your co-executor cannot act on your behalf.

An article from the Las Vegas Review-Journal, “Shocking twist: Tony Hsieh left a will after all, new filing says,” explains what we know so far.

Tony Hsieh founded Zappos, building the online shoe and clothing website into a unique and highly successful business. In 2009, Hsieh sold Zappos to Amazon for $1.2 billion, remaining as CEO until 2020.

After Hsieh died, his father acted to take over the administration of his estate. Many court filings stated that no will existed. However, lawyers who aren’t connected to the Hsieh family filed court papers with a will and an explanation of how it was found recently.

The new court papers included a will dated March 13, 2015, signed by Hsieh and several witnesses. The document had been given to Pir Muhammad, who subsequently developed Alzheimer’s disease and passed away. The will was found among Muhammad’s personal belongings.

The will says that only Muhammad had a copy of the original will. Hsieh was worried about someone tampering with his will and made a video as an additional layer of precaution. Hsieh’s letter also said no beneficiaries had been told about his plans, so that they wouldn’t know anything until after his passing. He said he wanted them to “experience the ‘WOW’ factor.”

The ‘WOW’ factor was a core value at Zappos, described as creating a memorable, delightful customer experience. While it was great for his customers, it wasn’t so great for his estate plan.

The newly discovered document named an attorney as co-executor with Muhammad and said that if either Muhammad or Armstrong failed to act, another attorney was the contingent executor. Muhammad had signed the will. However, the other two co-executors had not.

Many claims have been made against the estate by people who say they were doing business with Hsieh. Sadly, in his final years, court papers state his behavior was increasingly erratic. There were allegations of people taking advantage of him as his health deteriorated.

According to the family’s legal counsel, the family sought to locate a will. However, they were unsuccessful.

While Hsieh’s precaution was understandable, given the vast wealth, unfortunately, his decision not to tell anyone about the will’s existence has led his family to an equally large amount of legal trouble and stress.

The lessons apply at any level of wealth. Have an estate plan created with an estate planning attorney, share document details with more than one person and plan for the unexpected to protect your loved ones and your legacy.

Reference: Last Vegas Review-Journal (April 18, 2025) “Shocking twist: Tony Hsieh left a will after all, new filing says”

What Estate Planning Documents are Needed for a Smooth Transition?

No matter the size of the wealth you hope to pass on to the next generation, planning for wealth transfer should be done as soon as possible. It’s good to start talking and educating children about money, as early as their teenage years, says a recent article from yahoo! finance, “Multi-Generational Wealth Transfer: The Financial Records You Need for a Smooth Transition.” Conversations about financial responsibility, the children’s goals and family values can profoundly impact the family dynamic and the children’s fiscal knowledge.

You’ll also want to be sure you have all the estate planning and financial records needed for a smooth wealth transfer and access to the necessary data. Here’s what this includes:

Last Will and Testament. This document outlines how you want probate assets to be distributed after your passing. You’ll need to have an inventory of all assets and a clear picture of your finances. It’s good to review your finances and estate plan on a regular basis.

Trust Documents. While the will is a set of instructions, a trust is a legal entity used to hold assets. Those assets in trusts aren’t subject to probate, offer privacy and allow for the assets to be used in case of incapacity during your lifetime.

Healthcare Directives and Power-of-Attorney. Estate planning isn’t just about asset distribution. Everyone should have a healthcare directive and a power of attorney. If you are seriously injured in an accident, healthcare directives will be needed to allow others to be involved in your care. A power of attorney empowers a person of your choosing to make decisions on your behalf. If you don’t have these documents, your family will have to go to court and petition to obtain conservatorship or guardianship to be involved with your care and finances.

Retirement Account Statements and Tax Returns. Access to these documents will help your executor or agent figure out your financial status. Tax returns contain a wealth of information, including income, account information and potential tax liabilities.

Real Estate Deeds, Mortgages, and Titles to Cars, Boats, etc. Titles documenting ownership, deeds, vehicle registrations and mortgage and loan information will all be needed to settle your estate.

Digital Assets. Educate yourself about the importance of sharing access to digital assets, so you can prepare properly if you are incapacitated or when you die. While some platforms can assign a legacy contact, others may only be accessible by sharing the username and password information. If the asset uses third-party authentication, your executor will also need your phone or access to email to manage your accounts. Passwords and PINS should be stored with both a hard copy and online with a secure password manager.

An estate planning attorney in your community will know how to best prepare for transferring wealth, from preparing the necessary documents to exploring different strategies and guiding the process.

Reference: yahoo! finance (March 31, 2025) “Multi-Generational Wealth Transfer: The Financial Records You Need for a Smooth Transition”

What Is the Best Way to Pass Property to Heirs?

Estate planning is done to ensure that wealth is passed efficiently, while minimizing tax exposure. For many families, wealth includes real estate. Gifting undivided real estate interests is often overlooked as a smart way to pass property to loved ones, as explained in a recent article, “Unlocking Value in Shared Real Estate” from Wealth Management.

Families owning joint properties like vacation homes, rental properties, or inherited land should consider the use of undivided real estate interests to secure a financial legacy. Undivided real estate interests refer to a fractional share of a property that multiple owners hold joint rights to, without any specific part belonging to any one person. Every owner has equal access and ownership to the entire property, and the owners don’t have to be related. These typically take the form of homes passed down to multiple heirs or rental properties owned by siblings or business partners.

The term “tenancy in common” is often used interchangeably with undivided real estate ownership.

There are some drawbacks to this ownership structure. Major decisions will need all owners to agree. Owners may not sell their joint rights to the property, unless they can find someone who wants to be a joint owner—there’s no significant market for buying a house with someone else’s family. This makes it challenging to achieve liquidity due to a lack of control and marketability.

These same drawbacks produce significant benefits, namely, creating valuation discounts because of the inherent limitations on control and marketability. Unlike properties wholly owned by individuals, fractionally owned real estate is recognized by the IRS as having a fair market value that differs from that of properties wholly owned by individuals. A professional valuation expert will be needed to substantiate the discounts, allowing the family to claim accurate value reductions.

Here’s an example of how this might work. Let’s say three siblings inherit a family vacation home valued at $1.5 million. Each receives an undivided one-third interest. While the value of the total property is clear, the experienced appraiser takes into account the fractional ownership structure. The valuation discount is 30%, with the fair market value of the taxable gift being $350,000 per sibling. The total amount transferred for estate tax purposes is then reduced to under $1.1 million from the original $1.5 million.

Planning with an experienced estate planning attorney and a professional valuation expert is crucial for effectively applying valuation discounts. The IRS scrutinizes valuation discounts, so having real market data is necessary to support the discount. This is not the time to use a boilerplate form or use non-professionals.

Despite the complexity, the use of undivided real estate ownership can yield substantial tax advantages, making this something to discuss with your estate planning attorney to secure your legacy.

Reference: Wealth Management (May 19, 2025) “Unlocking Value in Shared Real Estate”

Can You Prevent a Will from Being Contested?

A 65-year-old woman wishes to have her estate organized by an executor, with the request that 90% of her assets be left to one of her grandchildren. She asks how she can be sure the executor will decide how to distribute her assets when the grandchild is 25 years old. To add a twist, there are several other grandchildren.

This situation, described in an article, “’ The situation is extreme’: I’m 65 and leaving my estate to only one grandchild. Can the others contest my will?” from MarketWatch, reveals the dangers of not understanding estate planning basics.

The executor has nothing to do with when or how to distribute assets to heirs. Their role is to follow the directions in the will, which should be expressed by the testator, or the person creating the will.

In cases like this, a will should be created by an experienced estate planning attorney. It should include the names of all individuals included in the distribution and those who should be excluded. An estate planning attorney may advise this person to create a trust, with a trustee to carry out their instructions, in addition to the will. The terms of the trust must be crystal clear, so that no one can challenge the trust, and the same applies to the will.

How to do this? While you can’t prevent someone from challenging a will, and an executor can’t take on the role of enforcer, an experienced estate planning attorney will know how to create an estate plan to withstand challenges.

First, make sure the will and trust are created when you are healthy, and of “sound mind and body.” Once someone starts displaying signs of dementia, it is easier to challenge a will or trust and claim the person wasn’t competent to make decisions. The trust and estate attorney will also know the law in your jurisdiction about creating and finalizing these documents. In some states, you only need one witness to finalize a will, while in others, you need two people. This is a minor detail. However, it can render an estate planning document invalid.

There is also a clause used in some states known as the in terrorem clause. Any beneficiary who contests the will automatically forfeits their right to inherit anything from the estate. This clause is used (where permitted) when a will challenge is expected. If this is allowed in your state, your estate planning attorney will know how to incorporate it into your will.

A common reason for wills and trusts to be deemed invalid might surprise you. People often neglect to put their final signature on a will or trust. A will could be entirely correct and well prepared. However, if it’s not signed, it’s not valid.

There are also trusts specifically created for individuals with disabilities, known as Special Needs Trusts. They are designed to benefit heirs who may not be able to manage an inheritance or who receive means-tested government benefits and may not own more than a certain amount of assets. Special Needs Trusts are also used by families who have a member with a substance abuse issue.

The best advice for this grandmother, who favors one grandchild, is to meet with an experienced estate planning attorney to discuss the situation candidly and outline her goals. She must make the decisions about how her estate is to be distributed and put them down on paper, so the executor can follow her directions.

Reference: MarketWatch (May 30, 2025) “’The situation is extreme’: I’m 65 and leaving my estate to only one grandchild. Can the others contest my will?”

Estate Planning Blog Articles

Estate & Business Planning Law Firm Serving the Providence & Cranston, RI Areas

What Is an Advance Directive and Why Is It Important?

What Is a Dementia-Specific Directive?

How an Elder Law Attorney Can Help You Prepare for Incapacity

Why Early Planning for Dementia Matters

Starting the Conversation with Loved Ones

Speak with an Elder Law Attorney to Plan Now for Dementia

Key Takeaways

Early Childhood: Building a Foundation to Support Your Special Needs Child

Adolescence: Preparing for Transition

Adulthood: Legal and Financial Tools

Estate and Special Planning Integration

Key Takeaways

Why Asset Protection Planning Matters

Common Asset Protection Tools

When to Start Asset Protection Planning

Asset Protection and Your Estate Plan

Key Takeaways

Join Our eNewsletter

Recent Posts

Categories

Email/Social Media

Quick Links