Skip to Content

We are a Veteran Owned Business, providing 20% discounts for Veterans, First Responders, Elementary and High School teachers. We remain open during the shutdown period, so please contact us to set up a phone or Zoom meeting. Taking care of you and your family, It's What We Do!

Klenk Law

Providing for Family After Death Through Marital Trusts in Montgomery County, PA

Posted on Thu Jan 1, 2015, on Trusts

From our “Ask a Question” Mailbag: Providing for Family After Death Through Marital Trusts in Montgomery County, PA

Most Recently Updated July 7, 2018

“Will a marital trust provide for my family after my death?”

Providing for Family After Death Through Marital Trusts in Montgomery County, PA

Providing for Family After Death Through Marital Trusts in Montgomery County, PA

Ensuring the financial well being of family after death is a fundamental concern for clients when estate planning. By Trust or by Will, various strategies exist to satisfy that concern. Keeping up to date on real cases helps ensure our strategies are appropriately tailored to your needs.

Case Example:

The Orphans’ Court of Common Pleas of Montgomery County, Pennsylvania recently ruled on one family’s strategy in Zucker Estate. This case provides insight into how accurate trust drafting can achieve your financial support goals. The court focuses on the marital trust and critical difference between exclusive and non-exclusive powers of appointment. A factual background will serve as a point of reference for the key takeaways in Zucker.

Factual Background:

  • 1996 – Mr. Z, a Montgomery County resident, drafts Will, including a marital trust for the benefit of his wife Mrs. Z. The Marital trust includes powers of appointment held by Mrs. Z.
  • 2002 – Mr. Z dies, survived by Mrs. Z and three children (SZ, KG, WG).
  • 2003 – Mrs. Z drafts Will.
  • 2005 – Mrs. Z drafts codicil exercising exclusive powers of appointment and specifically disinheriting WG.
  • 2013 – Mrs. Z dies.
  • 2013 – WG files suit in Montgomery County Orphans’ claiming powers were non exclusive and exercised in bad faith.

The marital trust in Mr. Z’s Will existed to provide financially for Mrs. Z for the rest of her life. Then, by terms of the trust, she had the power to appoint, “all or any part of the principal […] to or for any one or more of my children.” Providing for Mrs. Z was not the issue in this case. The issue in Zucker is what powers Mrs. Z had over disposition of the trust principal after her death. How the marital trust in Mr. Z’s Will was drafted governs the extent Mrs. Z’s power.

The Court’s Conclusion:

After careful parsing of the language in Mr. Z’s Will the Montgomery County Orphans’ Court reached two conclusions – the powers of appointment were exclusive and no “good faith requirement” in exercising that power exists.

Important Points in the Example

The importance of determining whether powers of appointment will be exclusive or non exclusive before drafting cannot be overstated. Fortunately, it’s a matter left solely to the discretion of the testator. In its most basic terms, an exclusive power allows the holder (here, Mrs. Z) to disinherit persons when disposing of the trust assets. Contrasted with non-exclusive powers that do not allow the holder to disinherit a member of the class stated in the original trust.

The key language in the trust was, “to or for any one or more of my children.” This gave Mrs. Z exclusive powers of appointment. If she had not exercised those powers, the trust would have been distributed equally among her three children. Mrs. Z did exercise her powers to specifically exclude WG, who initiated the suit before the Montgomery County Orphans’ Court. Due to carefully drafted language entitling Mrs. Z to exclusive powers of appointment, she succeeded in excluding WG from the trust assets.

WG’s second argument against her exclusion from the trust assets also failed. WG claimed that Mrs. Z used her powers in bad faith, out of hate for WG. The court dismissed this stating no precedent in Montgomery County existed to imply good faith into the exercise of powers of appointment.

Advice

Whether your goal is to provide for your spouse, children or both – careful drafting can help effectuate those goals. Spelling out your intentions with the help of an experienced lawyer is an easy way to ensure the advice from Zucker keeps your family out of the courtroom.

More Planning Questions?

A marital trust is only a piece of the Estate Planning process. By all means, if you want to learn more, please read my more detailed article, Estate Planning Everything You Need to Know.

In Conclusion: Providing for Family After Death Through Marital Trusts in Montgomery County, PA

I hope that this article was helpful in explaining marital trusts. Further, I included links to even more detailed information on my website so you can learn more. Therefore, please contact me and let me know how I did. Certainly, your comments and questions are welcome!

Let our Estate Planning lawyers help walk you through what can be a confusing process. To begin with, call to speak to one of our experienced estate planning lawyers.  By all means, our lawyers are ready to answer your questions. In fact, feel free to contact our office for a free consultation. Ultimately our goal is to make the process as painless as possible!

Wills, Trusts, Probate, and Estate Litigation, It’s All We Do!

 

Tags:

Estate Planning, Estate Planning Attorney, Estate Planning Lawyer, Montgomery County, Pennsylvania, Spousal Trusts, Trusts

What Our clients are saying

Klenk Law Logo
Stars

You & your staff are the best thank you for everything.

Klenk Law Logo
Stars

Answered my question quickly and referred me to a colleague that could handle my problem

Klenk Law Logo
Stars

I saw four lawyers and was told by all of them; I should just forget contesting my mother's will. I knew what happened, but it is very hard to prove undue influence. I contacted the Law Offices of Peter L. Klenk & Associates. Attorney Amanda DiChello took my case. They were very honest and upfront about what would be involved trying to prove what I knew was true. Attorney DiChello may be young but she is extremely knowledgeable and skilled. She listened and understood what I conveyed to her. She knew exactly what information to use and crafted an outstanding interrogatory and many powerful depositions. Attorney DiChello understood the various emotional feelings this case created for my family and me; she was always there for us with a kind and encouraging word. We went to trial. The amount of work which she and her Paralegal did for the trial was incredible. They both knew my case inside and out! Attorney DiChello's powerful interrogative and thinking skills produced a positive outcome. Attorney DiChello did what other seasoned lawyers said was impossible!

Klenk Law Logo
Stars

Peter and his associates made things easy for us.

Klenk Law Logo
Stars

Very knowledgeable! Peter Klenk always has a thorough answer, and the associates have more experience than you'll find at most firms. They really only do estate work.

Let us put our expertise to work for you.

Free consultation within 24 hours.