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Grandchildren: A Grand Opportunity To Create A Legacy

A bequest to a grandchild under a last will is an affirmative statement as to the grandparent’s love and recognition.

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I hate this time of the year. It is neither the pollen, nor is it the erratic weather. And this year, it is not just because of COVID-19. For me, personally, March through June represents a period of personal loss, a season when I mark the anniversaries of the deaths of my mother, uncles, an aunt, a cousin, and all four grandparents.

As a trusts and estates attorney, I deal a lot with death, whether it is clients considering the disposition of their estates, counseling families upon the passing of their loved ones, or advocating for an heir’s interest in an estate. I should be comfortable with the topic, and I normally am, except that sometimes, during this season it gets to me.

Way before I ever practiced law and years before I ever knew what it meant to be an estate lawyer, I had four grandparents, at least for a moment. One grandmother died a week after I was born.  The next died when I was three.  My grandfathers died a year apart, and by the time I turned 13, I was grandparent-less. By the time I turned 30, I was motherless.

I am consistently jealous of adults with parents and grandparents and individuals blessed with the opportunity to bear the title “great” grandparent. The loss of a parent is immeasurable and from a planning perspective, grandparents’ estates can make for very interesting cases.

Unfortunately, many grandparents face illness which cause them to spend their lifelong savings on home and nursing care. Some grandparents may not have amassed significant savings as a result of their careers or life experiences. Others have earned and saved a lot and have the ability to give.

Generally, probate laws tells us that we are supposed to give our estate to our spouse and also to our children. Grandchildren take if their parent, a son or daughter,  predeceases their parent, the decedent. Often times, a last will and testament or the laws of intestacy will describe a distribution by stating per stirpes, per representation, or per capita. This marks the way the testator wishes to distribute the asset in the event of the death of a descendant.

But what about bequeathing to grandchildren?  I am privy to many client stories of disappointing children, but wonderfully redeeming grandchildren.  As Gore Vidal stated: “Never have children, only grandchildren.” Sometimes, testators with robust estates make bequests to their grandchildren. Sometimes they even make significant gifts instead of giving to their own children. At times the bequest is something tangible, a family heirloom or maybe it is more significant, a financial or business interest.

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Although bequeathing to a grandchild makes a statement about one’s feelings toward the descendant, sometimes it causes friction. Assets given to a grandchild may take away from the children, a generation above. While sometimes this is due to estate and tax planning, for example in the form of a generation-skipping trust, often this is done simply because the grandchildren are adored, preferred, or the testator wishes to leave a legacy for them specifically. This may cause strife between parent and child. It may even cause a child to contest a last will in court.

When disinheriting or treating a relative differently than others, a “no contest clause” or “in terrorem clause” is included in a last will to dissuade the excluded beneficiary from contesting the will’s terms. This kind of clause warns that any beneficiary who participates in a proceeding to contest the will, will, as well as her children and grandchildren, forfeit any interest under the will. As one can imagine, there can be significant litigation among families with regard to last wills and testaments and no contest clauses.

Some grandparents feel that a bequest to a grandchild is not necessary because a grandchild’s parent is receiving and therefore the grandchild’s life will be enhanced. Obviously every case is different, however, a bequest to a grandchild under a last will is an affirmative statement as to the grandparent’s love and recognition. It is a permanent expression, preserved in the last will and testament that becomes a family heirloom in and of itself. Certainly for those lucky enough to become grandparents, incorporating grandchildren into one’s estate plan is a unique opportunity, no matter the size or constitution of the legacy. For certain it will ease the pain and sense of loss, when that generation has passed.

Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.

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