DBTC Law Firm

Rewriting the Will After Death: Family Settlement Agreements

Every competent person under law may direct the distribution of his or her estate after death through a Will, or in a more sophisticated plan, a Revocable Trust.  It certainly is good business to have a carefully thought out and written plan for disposing of one’s estate after death, and thus lawyers persistently admonish their clients to have in effect current “estate plans.”  Sometimes, however, “the best laid plans go astray.” Unforeseen circumstances arising before or even after death may cause strict compliance with the directions in a Will and Trust to have unexpected, unfair and unhappy results for the family and beneficiaries involved.  There may be a solution. Provided everyone with an expectancy in the estate agrees, it is possible for all of the beneficiaries through a “Family Settlement Agreement” to effectively rewrite the Will or Trust and settle the estate as they wish, rather than as directed by the deceased person. In fact, Family Settlement Agreements are “favorites of the law,” eagerly enforced by the courts when properly entered (Arkansas Supreme Court, Machen vs. Machen, 2011 Ark. 531). There are also procedures for informally or judicially revoking or amending otherwise “irrevocable” Trusts. It is frequently surprising to clients to find out that, presuming all agree, they can rewrite their parents’, grandparents’, or other decedent’s Wills to accommodate current circumstances after the death.

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