Fair Division

When a couple engages in foundational estate planning, one of the first questions addressed by estate planning attorneys is whether it makes sense for the couple to use a revocable living trust (RLT) as a part of their plan. If using an RLT makes sense, an important follow-up question to married couples should be whether it makes sense for them to use a joint RLT or separate RLTs.

When selecting a successor trustee for a trust, it is common for the individual who creates the trust (the trustmaker) to choose one person to serve as a successor trustee at a time. Some attorneys routinely recommend that only a single successor trustee be appointed to avoid the potential for conflicts between co-trustees during trust administration. This can be a prudent approach and works well in many situations. This is particularly true when the appointed trustee diligently keeps the beneficiaries of the trust informed about the trust administration and carefully fulfils the trustee’s responsibilities under both the law and the provisions of the trust document.

“That’s not fair!” In many households, this is the common refrain of children as they advocate for themselves or express what they feel to be unjust. This pursuit of fairness, however, is not limited to arguments between parents and young children.

The notion of fairness often pervades family dynamics and may continue even beyond death when decisions about dividing accounts and property arise. The law has attempted to address different notions of fairness with a variety of distribution strategies. Per stirpes, by representation, and per capita are key terms in wills and trust agreements that specify the way money and property are to be equitably divided.
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Equality is a noble concept and one many people turn to when deciding how to divide up their estate. There are many circumstances in which equal distribution of assets among beneficiaries is the right choice, but there are some cases where identical inheritances do not make the most sense. In such situations, the difference between what is equal and what is fair is obvious. Let us take a look at an example of each:

Equal Division

In hypothetical one, you have three kids and want to divide your assets and wealth equally among them. All three are at similar places in their lives, have received similar emotional and financial support from you in the past, and are each responsible and capable of managing their individual inheritance.
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