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Old 11-14-2018, 10:52 AM
UltraVires UltraVires is offline
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Should the law allow trusts and other dead hand control?

I get frustrated when I read some of these trust documents. A person died in 1967 and yet their wishes still control the disposition of real property or money.

I understand that they owned this stuff in 1967, but why do their wishes control today? This person has decomposed and/or has passed on to the afterlife depending upon your religious views.

And some of these restrictions are absurd. The beneficiary can only own the land so long as they don't consume alcohol or even more absurd, so long as they don't marry a black person.

I am slowly becoming of the opinion that a testator may devise his property to whomever he or she chooses, but it must be an outright gift. No strings attached. That individual, who is alive in 2018, should be able to use that property however he or she chooses and not have grandma ruling his or her life from the grave.

Is there a good argument otherwise?
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Old 11-14-2018, 10:57 AM
Ravenman Ravenman is online now
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This seems like a great invitation for someone to explain to me once more, as though I am a sixth grader, the rule against perpetuities and its exceptions. I thought that concept was invented to sometimes prohibit situations like the OP describes, although with exceptions that aren't clear to me.

Last edited by Ravenman; 11-14-2018 at 10:58 AM.
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Old 11-14-2018, 11:02 AM
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Some cites for the claims in the OP might help us understand how they happened and why they are allowed.

Last edited by Czarcasm; 11-14-2018 at 11:03 AM.
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Old 11-14-2018, 11:08 AM
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Originally Posted by UltraVires View Post
I get frustrated when I read some of these trust documents. A person died in 1967 and yet their wishes still control the disposition of real property or money.

I understand that they owned this stuff in 1967, but why do their wishes control today? This person has decomposed and/or has passed on to the afterlife depending upon your religious views.

And some of these restrictions are absurd. The beneficiary can only own the land so long as they don't consume alcohol or even more absurd, so long as they don't marry a black person.

I am slowly becoming of the opinion that a testator may devise his property to whomever he or she chooses, but it must be an outright gift. No strings attached. That individual, who is alive in 2018, should be able to use that property however he or she chooses and not have grandma ruling his or her life from the grave.

Is there a good argument otherwise?
If that individual does't want Grandma ruling his or her life from the grave, they don't have to accept the property/money. I'm okay with the concept, (except those clearly against public policy, such as "don't marry a black person." I think that could be challenged in court like the racial covenants in real estate were).

If I leave $1,000,000 to my daughter, who I believe has an addiction problem, I might want to let her have $1,000 per month "as long as she doesn't drink and do drugs." She can do what she wants, of course, but she's not going to get my money. If I couldn't do that, I'd just give the million to PETA when I die and my kids can do what they wish.
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Old 11-14-2018, 11:08 AM
UltraVires UltraVires is offline
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This seems like a great invitation for someone to explain to me once more, as though I am a sixth grader, the rule against perpetuities and its exceptions. I thought that concept was invented to sometimes prohibit situations like the OP describes, although with exceptions that aren't clear to me.
Oh my. Here is the basic rule against perpetuities: Any contingent transfer must vest, if at all, within a life in being plus 21 years.

So, it is very easy to name your grandchildren as the controlling lives in being. So the property goes first to your children with conditions, then grandchildren with conditions. It is very easy to tie up property, not in perpetuity, but for 75 to 80 years.

I have seen some trusts that use all of the living descendants of John D. Rockefeller I as the controlling lives in being.
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Old 11-14-2018, 11:13 AM
UltraVires UltraVires is offline
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If that individual does't want Grandma ruling his or her life from the grave, they don't have to accept the property/money. I'm okay with the concept, (except those clearly against public policy, such as "don't marry a black person." I think that could be challenged in court like the racial covenants in real estate were).

If I leave $1,000,000 to my daughter, who I believe has an addiction problem, I might want to let her have $1,000 per month "as long as she doesn't drink and do drugs." She can do what she wants, of course, but she's not going to get my money. If I couldn't do that, I'd just give the million to PETA when I die and my kids can do what they wish.
I don't have the case cites handy, but the "don't marry a black person" clause has been enforced. Courts have ruled that it is against public policy to require a person divorce his or her black spouse as divorce is against public policy.

To your second point, what if the daughter goes to Rational Recovery or that there is some sort of advance in medical science to cure alcoholism? What if she finds that having a drink every second day allows her not to binge? You are going to control her funds for the rest of her life based upon your assessment at the moment you write your will? In your life, you could have a drink and keep your money. Why can't she?

To say that she can just refuse the $1 million is a non-starter. Nobody would refuse that.

ETA: And the property must vest at some time. Why would you want it to vest with your great-grandson who might give it all away to a Nazi group or something. You at least know your daughter, but not these distant relatives.

Last edited by UltraVires; 11-14-2018 at 11:15 AM.
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Old 11-14-2018, 11:30 AM
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One thing trusts can be used for are the care of disabled/special needs people- a trust could be set up with specific restrictions on how the money can only be spent on their care and feeding, and not given to a televangelist, or spent on hundreds of thousands of Beanie Babies or something.

That's an example of why that kind of thing is GOOD in certain circumstances.

Ultimately a trust is a separate legal entity that is governed by rules set up by the initial trustor. So some puritanical old biddy could say that her trust is for her children and grandchildren who don't drink alcohol. She'd probably need to define what that means- does that mean habitually? Ever? Not on consecutive Sundays? for it to have any real meaning I'd think.
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Old 11-14-2018, 11:47 AM
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I don't have the case cites handy, but the "don't marry a black person" clause has been enforced. Courts have ruled that it is against public policy to require a person divorce his or her black spouse as divorce is against public policy.

To your second point, what if the daughter goes to Rational Recovery or that there is some sort of advance in medical science to cure alcoholism? What if she finds that having a drink every second day allows her not to binge? You are going to control her funds for the rest of her life based upon your assessment at the moment you write your will? In your life, you could have a drink and keep your money. Why can't she?

To say that she can just refuse the $1 million is a non-starter. Nobody would refuse that.

ETA: And the property must vest at some time. Why would you want it to vest with your great-grandson who might give it all away to a Nazi group or something. You at least know your daughter, but not these distant relatives.
Because, it's not her money. It's my money, that I've put in trust to be released as I see fit. I get your point, and I'm saying there aren't arguments on both sides.

As an aside, my father gave millions of dollars to charity at the end of his life, for the express purpose of not "ruining" his children (and grandchildren) with a large inheritance. We each received a very modest amount (5 figures) in his will. So, I start from the perspective that no one has a right to anything, and if someone wants to transfer funds with strings attached, so be it.

I think if your proposal came about and a person had to chose an outright gift or nothing, a fair number of people wouldn't do it.
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Old 11-14-2018, 11:51 AM
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One thing trusts can be used for are the care of disabled/special needs people- a trust could be set up with specific restrictions on how the money can only be spent on their care and feeding, and not given to a televangelist, or spent on hundreds of thousands of Beanie Babies or something.

That's an example of why that kind of thing is GOOD in certain circumstances.

Ultimately a trust is a separate legal entity that is governed by rules set up by the initial trustor. So some puritanical old biddy could say that her trust is for her children and grandchildren who don't drink alcohol. She'd probably need to define what that means- does that mean habitually? Ever? Not on consecutive Sundays? for it to have any real meaning I'd think.
But when the grantor had the money, he or she was free to give it all to a televangelist or buy a bunch of Beanie Babies with it, or buy cases of whiskey. Why should the grantor's dead hand now say that you can only use the money for these purposes which I, from my grave, believe are positive purposes?

To your second point, she would need to define what "don't drink alcohol" means. But she didn't. So everyone gets to pay for lawyers and go to court to let a judge decide if that phrase means never ever or only drinking to excess. Then we argue about what is excessive drinking. All the while that when grandma had the money she was free to drink whiskey for breakfast.

Grandma had her time on this Earth, now she is gone and the kids get to have their time and do good or bad just like all people do.
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Old 11-14-2018, 12:04 PM
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Because, it's not her money. It's my money, that I've put in trust to be released as I see fit. I get your point, and I'm saying there aren't arguments on both sides.

As an aside, my father gave millions of dollars to charity at the end of his life, for the express purpose of not "ruining" his children (and grandchildren) with a large inheritance. We each received a very modest amount (5 figures) in his will. So, I start from the perspective that no one has a right to anything, and if someone wants to transfer funds with strings attached, so be it.

I think if your proposal came about and a person had to chose an outright gift or nothing, a fair number of people wouldn't do it.
That was your father's choice, and my proposal would not hamper that sort of choice.

And I agree that right now it is your money and you can do what you see fit with it. My concern is that once you pass on, why should your wishes, say today in 2018, control into possibly the next century? We all have our appointed time on this Earth. Why shouldn't each generation have full control over the limited resources available during such times?
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Old 11-14-2018, 12:56 PM
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Where do you draw the line? Should you be allowed to give any directions at all about the distribution of your estate?

Is for instance this okay? "My estate should be held in trust for my delightful grandson Cleb, until he reaches the age of maturity. His father, my spendrift son Clob, shall only have 100000$ a year, to cover minor expenses."

What about? "Clob get's a 30 million. The remaining billion goes to my trusted friend Belch, and I hope he'll share with my grandson Cleb when the latter reaches age of maturity."

Or "All my money goes to Fencemakers without borders."

All of them make decisions about what should happen to the estate after the death of the testator, why are any of them acceptable?



And as always with should, and ought and laws, it might be interesting to look at what laws other countries have. Norway for instance puts certain rights of the heirs (spouse and direct descendants) before the freedom of the testator. Rough translation:
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6 If the deseased has descendants a current spouse is entitled to one fourth of the estate and at least 4 times the base social security amount (an index regulated amount that pops up everywhere in Norwegian law).
If the closest heirs are the deseased's parents or their offspring, a spouse is entitled to half, or at least 6 times the base amount.

7 These rights can only be restricted by testament if the spouse was aware of the testament before the death of the deseased, and the right to 4 or 6 times the base amount cannot be restricted.

29 2/3 of the estate must go to direct descendants, unless this exceeds 1.000.000 NOK (currently $117k) per child or child's line, although in the latter case each recipient should receive at least 200k NOK even if this exceeds the 1 million. This cannot be reduced by testament unless the exception is present in this law.

36 Offspring who were still being "raised" at the time of death have preference to a part of the estate to cover their subsistence and education if such is reasonable considering the size of the estate. The size of the part must be adapted acording to multiple factors. (Including how much support grown siblings received.

37 This preference cannot be restricted by testament.
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Old 11-14-2018, 01:07 PM
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Here's an example of what seems to me a reasonable trust: I am married to a man who has no interest or ability in learning to handle money. That's point one. Point two is that I don't want his relatives to get their hands on a dime of the money that I brought into this relationship.

Therefore, if I die first, there is a trust consisting of my IRA and my share of the house. The trustee will pay the bills (mortgage, utilities) from that trust plus a fixed amount of spending money (he will also have his social security). If my husband dies before the trust is exhausted, the remains of the trust will be given either to charity or to my great-grand nieces and nephews, depending on conditions. Whatever my husband owns when he dies he can do with as he pleases, even if he saves money from his spending money.

So this is a dead hand (mine) controlling what happens to the money I brought into this relationship after I die, such that my husband will be taken care of and his relatives get nothing from me. Would your proposal (OP) allow for this situation?
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Old 11-14-2018, 01:12 PM
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Where do you draw the line? Should you be allowed to give any directions at all about the distribution of your estate?

Is for instance this okay? "My estate should be held in trust for my delightful grandson Cleb, until he reaches the age of maturity. His father, my spendrift son Clob, shall only have 100000$ a year, to cover minor expenses."

What about? "Clob get's a 30 million. The remaining billion goes to my trusted friend Belch, and I hope he'll share with my grandson Cleb when the latter reaches age of maturity."

Or "All my money goes to Fencemakers without borders."

All of them make decisions about what should happen to the estate after the death of the testator, why are any of them acceptable?
I don't have a problem with any of those. Yes, they make decisions about the property after the death of the testator, but there are no conditions on them. If you are a billionaire and want to give your kid $1 billion, $1 million, $10k, or nothing, then I agree with your choice. My objection is that you get a certain amount of money but must spend it only on X, or must not spend any of it on Y, or you only keep the real estate so long as you don't drink, or smoke, or jerk off too much, or marry a black woman.

The devise should have to be, IMHO, unconditional just as the testator had it. The testator made a choice not to drink or marry a black woman. Fine. The next generation should be free to make his or her own choices about drinking or marrying black women.
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Old 11-14-2018, 01:19 PM
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What does The Constitution say?
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Old 11-14-2018, 01:23 PM
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Originally Posted by UltraVires View Post
I get frustrated when I read some of these trust documents. A person died in 1967 and yet their wishes still control the disposition of real property or money.

I understand that they owned this stuff in 1967, but why do their wishes control today? This person has decomposed and/or has passed on to the afterlife depending upon your religious views.

And some of these restrictions are absurd. The beneficiary can only own the land so long as they don't consume alcohol or even more absurd, so long as they don't marry a black person.

I am slowly becoming of the opinion that a testator may devise his property to whomever he or she chooses, but it must be an outright gift. No strings attached. That individual, who is alive in 2018, should be able to use that property however he or she chooses and not have grandma ruling his or her life from the grave.

Is there a good argument otherwise?
I take it you've never had to wrestle with the Rule Against Perpetuities?
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Old 11-14-2018, 01:24 PM
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Benjamin Franklin left 2 trusts which existed for 200 years:

https://www.nytimes.com/paidpost/fra...-the-past.html
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Old 11-14-2018, 01:25 PM
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What does The Constitution say?
The United States Constitution? It's pretty silent on the issue. Maybe the 5th amendment's due process guarantees, depending on how you frame the issue.
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Old 11-14-2018, 01:26 PM
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Here's an example of what seems to me a reasonable trust: I am married to a man who has no interest or ability in learning to handle money. That's point one. Point two is that I don't want his relatives to get their hands on a dime of the money that I brought into this relationship.

Therefore, if I die first, there is a trust consisting of my IRA and my share of the house. The trustee will pay the bills (mortgage, utilities) from that trust plus a fixed amount of spending money (he will also have his social security). If my husband dies before the trust is exhausted, the remains of the trust will be given either to charity or to my great-grand nieces and nephews, depending on conditions. Whatever my husband owns when he dies he can do with as he pleases, even if he saves money from his spending money.

So this is a dead hand (mine) controlling what happens to the money I brought into this relationship after I die, such that my husband will be taken care of and his relatives get nothing from me. Would your proposal (OP) allow for this situation?
Well, no it would not.

You say your husband is bad with handling money. What that means at it base level is that you believe that the choices you make in spending money are superior to that of your husband. And likewise you husband probably believes (or else he would not spend it that way) that his way of spending money is superior to yours.

Now, we could probably take a poll if we saw your budget and maybe 99% of us would agree that you are more responsible with money than your husband. And I have no problem with that.

But, my issue is that once you are dead and gone, why should your wishes continue to control the living? During your life you made the choice to spend wisely and be frugal with your money. Now that you are gone, why does the next person have to spend the money in the exact same way that you did?

Maybe you get satisfaction from having an extra $1,000 in a savings account, but the next person gets satisfaction from spending $1,000 on a night out at the strip club. Again, why should a dead person's wishes control the living?
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Old 11-14-2018, 01:27 PM
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I take it you've never had to wrestle with the Rule Against Perpetuities?
Oh yes I have. For the purposes of this thread, I am only commenting on trusts which indisputably do not violate that rule.
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Old 11-14-2018, 01:33 PM
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The United States Constitution? It's pretty silent on the issue. Maybe the 5th amendment's due process guarantees, depending on how you frame the issue.
What happens with stuff not expressly forbidden by the US Constitution?
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Old 11-14-2018, 01:36 PM
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What happens with stuff not expressly forbidden by the US Constitution?
I'm not getting your point. I think a state could do what the OP is advocating for (although I haven't really analyzed that question). No one has said it can't be done. The debate is on the merits, not legality.
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Old 11-14-2018, 01:49 PM
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Well, no it would not.

You say your husband is bad with handling money. What that means at it base level is that you believe that the choices you make in spending money are superior to that of your husband. And likewise you husband probably believes (or else he would not spend it that way) that his way of spending money is superior to yours. . .
Not necessarily. Some people are scatter-brained where money is concerned and others compulsively spend whenever they have in hand. They know that's true, but they can't or won't change it. Then they end up in trouble, know it's their own fault, and hate themselves for it. I don't see saving someone from that as being a bad thing.

Some people don't bother to budget, but don't care if someone else does it for them. Again, no problem.

Other people think they have a superior way of handling money, and then end up in a bind as they get older and, oops, maybe they should have saved more.

Basically, I don't see a problem with doling out money slowly rather than handing someone a lump sum and saying, "Ha, ha, sucker. Sink or swim, I don't care which."
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Old 11-14-2018, 02:10 PM
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Not necessarily. Some people are scatter-brained where money is concerned and others compulsively spend whenever they have in hand. They know that's true, but they can't or won't change it. Then they end up in trouble, know it's their own fault, and hate themselves for it. I don't see saving someone from that as being a bad thing.

Some people don't bother to budget, but don't care if someone else does it for them. Again, no problem.

Other people think they have a superior way of handling money, and then end up in a bind as they get older and, oops, maybe they should have saved more.

Basically, I don't see a problem with doling out money slowly rather than handing someone a lump sum and saying, "Ha, ha, sucker. Sink or swim, I don't care which."
This is just a different way of saying that my budgeting and spending is superior to yours. Even if the second party agrees that he is a terrible budgeter and spender, that is not a good argument to treat him like a child or a ward of the state.

So, now, you have the freedom to go spend $1,000 at the strip club. You won't do it because you are responsible. Great. That's wonderful, and I mean that with no sarcasm. But why should your wishes control once you are in the ground?
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Old 11-14-2018, 02:14 PM
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But, my issue is that once you are dead and gone, why should your wishes continue to control the living? During your life you made the choice to spend wisely and be frugal with your money. Now that you are gone, why does the next person have to spend the money in the exact same way that you did?
Because it's mine and not theirs. If they don't like the rules, they don't have to take the stuff.

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Maybe you get satisfaction from having an extra $1,000 in a savings account, but the next person gets satisfaction from spending $1,000 on a night out at the strip club. Again, why should a dead person's wishes control the living?
Why give an interest in property to someone who doesn't have one? Other than stuff like elective shares or mandatory support (kids and adult children with special needs), the property is mine to do with as I please. And if I please to leave it to my adult kids only if they root for the Packers, then so be it. Unless the restriction violates public policy or there are issues of fairness, it's mine to do with as I want, even if I'm dead.
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Old 11-14-2018, 02:22 PM
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Because it's mine and not theirs. If they don't like the rules, they don't have to take the stuff.

Why give an interest in property to someone who doesn't have one? Other than stuff like elective shares or mandatory support (kids and adult children with special needs), the property is mine to do with as I please. And if I please to leave it to my adult kids only if they root for the Packers, then so be it. Unless the restriction violates public policy or there are issues of fairness, it's mine to do with as I want, even if I'm dead.
Sure. That is the current law. The debate is whether that is a good law. And I fail to see why, once you are dead, that your kids should have to continue to root for the Packers in order to keep the money. You got the money without conditions. You could root for the Packers or (if you went crazy) the Dallas Cowboys.

Why do your kids have to keep rooting for the Packers because Dad said so 20, 50 or even 70 years ago. What if 20 years from now the Packers organization comes out and says that they believe in White Supremacy and will dedicate their organization to prevent the mongrelization of the races? Your kids are appalled, but you are dead and cannot change the terms of the gift. Do we get a Ouija Board and try to contact you?
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Old 11-14-2018, 03:12 PM
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There exists property.

Someone will exercise control over it.

Is there any other person who should be granted the privilege over controlling the money? I don’t think so. Any other person will have a weaker claim to control in my opinion.

The descendants? Why should they get control?

The state? An irrelevance.

The spouse? I could see that I guess.
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Old 11-14-2018, 03:20 PM
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Perhaps because the decision is made while still alive. Maybe I have a good chunk of change and the end is near. My son unfortunately has a hummel-figurine fixation: probably whatever he inherits will soon be converted into artistically questionable porcelain monstrosities. So I only want him to have the money if he cant spend it like that, otherwise, Id rater spend it myself, right now. On singing fish wall plaques maybe.
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Old 11-14-2018, 04:17 PM
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If we're relying on "but why should your wishes control once you are in the ground?" then it seems to me we could take it to its logical conclusion and just do away with inheritance (or simulate that with a 100% inheritance tax). Maybe with some exceptions for actual dependents or college funds, etc.

I'm not advocating for that idea because I haven't thought it through enough to understand all the unintended side effects, but I'm not entirely unsympathetic towards it. If the state has to raise *some* revenue (and I think most people agree with this, even if they think the state ought to be a lot smaller), then essentially everything (property tax, income tax, sales tax, tariffs, etc.) is a tax on the living and is potentially at least partially a tax on money earned through enterprise or hard work by the living. An inheritance tax only effects the dead or people who didn't do any work to claim this money. If I wanted to shrink the state I'd reduce the "taxes on the living" only after there was no more "taxes on the dead / mooches" to suck dry first. While there still exists inheritance after tax and some sort of income related tax you've effectively made a choice to prioritize taxing the living over the dead.

In practice, there are probably quite a lot of institutions (hospitals, art museums, etc.) that would suffer greatly under such a scheme, so it's probably not be a great idea. Still, I don't really see much difference between getting to decide who gets to keep a bunch of money and getting to decide what people do with the bunch of money they get to keep. They're both examples of the dead dictating how people get to (or don't get to) spend money. Stranger McStrangerFace has dictated to me that I don't get to spend his $1000 on stupid things by completely neglecting me from his will, no less than he did to Stranger McStrangerFace Jr. by adding stipulations on the inheritance. This just doesn't seem like an important problem that needs solving.
  #29  
Old 11-14-2018, 04:41 PM
Hamlet Hamlet is offline
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Sure. That is the current law. The debate is whether that is a good law. And I fail to see why, once you are dead, that your kids should have to continue to root for the Packers in order to keep the money.
Again, because it's not theirs. It's mine. And I get to decide what, if any, limitations I want to put on it.

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Why do your kids have to keep rooting for the Packers because Dad said so 20, 50 or even 70 years ago.
They don't. They can root for whomever they want. If they want to sell their soul and root for the Cowboys or screw their sister, lose their teeth and become irrationally stupid, they can root for the Steelers.

But if they want to have my money, they'll have to do what I want. If I don't get to control my money after death, then we shouldn't allow any inheritance or bequests.
  #30  
Old 11-14-2018, 04:52 PM
Yllaria Yllaria is online now
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This is just a different way of saying that my budgeting and spending is superior to yours. Even if the second party agrees that he is a terrible budgeter and spender, that is not a good argument to treat him like a child or a ward of the state.

So, now, you have the freedom to go spend $1,000 at the strip club. You won't do it because you are responsible. Great. That's wonderful, and I mean that with no sarcasm. But why should your wishes control once you are in the ground?
So what you're saying is that I can help my husband and protect my kids while I'm alive, but I can't arrange for anything to help them when I'm not. Apparently you're saying screw them. If I can't physically see them being better off once I'm dead, I should give up on them and let the vultures descend.

By the way, "ward of the state"? Sounds like you have control issues.
  #31  
Old 11-14-2018, 06:22 PM
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Roderick Femm Roderick Femm is offline
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I think Driver8 and Hamlet have the right of it. Either the testator should be able to apply conditions to those who inherit testator's estate, or there should be no inheritance at all. Nothing in between makes any sense.

If, for example, I wanted to leave my money to my alma mater on condition that they build and name after me a recreation center for the entire community (or something else) I guess I wouldn't be able to do that under the OP's plan.

I think the OP's plan is not well thought out.
  #32  
Old 11-14-2018, 06:25 PM
Kimstu Kimstu is offline
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But why should your wishes control once you are in the ground?
By that reasoning, as a couple previous posters have suggested, why should your designation of particular legatees control once you're in the ground either?

You can choose to give money to Child A and none to Child B while you're alive. But once you're dead, what's the justification for requiring compliance with your will that leaves an inheritance to Child A and none to Child B? Why should your wishes control once you're in the ground?

If we don't need to respect a testator's stated wishes about how a legacy should be constrained, then I don't see why we need to respect a testator's stated wishes about who should get the legacy either. Once we start saying that the testator's wishes for the use of their money are no longer binding after they're dead, where do we draw the line?

Likewise, ISTM that this reasoning basically invalidates objections to the estate tax. Oh, you don't want your multimillion-dollar estate subjected to additional taxes after you die? Too bad, you're dead, your wishes are irrelevant.

(Personally, while I support the estate tax, I don't support justifying it on the grounds that intentions expressed during the testator's lifetime about the disposal of their property should automatically become entirely irrelevant and unenforceable once they're dead.)

Last edited by Kimstu; 11-14-2018 at 06:26 PM.
  #33  
Old 11-14-2018, 09:20 PM
Krav Manga Krav Manga is offline
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I am slowly becoming of the opinion that a testator may devise his property to whomever he or she chooses, but it must be an outright gift. No strings attached. That individual, who is alive in 2018, should be able to use that property however he or she chooses and not have grandma ruling his or her life from the grave.

Is there a good argument otherwise?
Do your objections extend to inter vivos trusts or just testamentary?
  #34  
Old 11-15-2018, 12:26 AM
K2500 K2500 is offline
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What does The Constitution say?
I see what you did there.

---

Maybe they should require contingencies to be built in. Jr wants to shoot dope and drink all day then try for the money against my wishes anyways? Bam, assets automatically donated to a short list of charities.

Now no-one is stuck with the unreasonable requirements of a dead man for the next forty years.
  #35  
Old 11-15-2018, 12:27 AM
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They don't. They can root for whomever they want. If they want to sell their soul and root for the Cowboys or screw their sister, lose their teeth and become irrationally stupid, they can root for the Steelers.
Ouch. I'm still feeling the pain of that burn. Well played.

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By that reasoning, as a couple previous posters have suggested, why should your designation of particular legatees control once you're in the ground either?

You can choose to give money to Child A and none to Child B while you're alive. But once you're dead, what's the justification for requiring compliance with your will that leaves an inheritance to Child A and none to Child B? Why should your wishes control once you're in the ground?

If we don't need to respect a testator's stated wishes about how a legacy should be constrained, then I don't see why we need to respect a testator's stated wishes about who should get the legacy either. Once we start saying that the testator's wishes for the use of their money are no longer binding after they're dead, where do we draw the line?

Likewise, ISTM that this reasoning basically invalidates objections to the estate tax. Oh, you don't want your multimillion-dollar estate subjected to additional taxes after you die? Too bad, you're dead, your wishes are irrelevant.

(Personally, while I support the estate tax, I don't support justifying it on the grounds that intentions expressed during the testator's lifetime about the disposal of their property should automatically become entirely irrelevant and unenforceable once they're dead.)
That could be a logical extension of my original thought. Like I've said before, I'm not writing a legal brief on here to a court.

But there is no reason that we have to take my OP that far. We as a society can say that a person, while they are alive, can determine the disposition of their property to whomever they wish after they are gone. However, that disposition must be absolute, or a possible modification would be that the condition must be immediate and clear.

As another poster suggested, the local college takes the money and names a building after you. Such a thing is direct and the consequences immediate such that the wishes are fulfilled by a single act and not through an ongoing promise that extends for tens of years. But even that can be frustrated by subsequent events.

What if the school discovers that the testator advocated for beating of women to "make them listen." Do they have to give the money back after 100 years, let's say? What if the school comes out in support of national socialism and decrees that Adolf Hitler was a great man? Do the grandkids get to remove their grandfather's name from the building or can the school stand by the dead hand wishes which by their very nature cannot be changed?

That's why I say that you have the right, while alive, to control the disposition of your property, but must do so absolutely. The next generation has every right to use it for good or evil, just as you did. Keep in mind that although generally these trusts have positive purposes, they could just as easily say that you must spend it in strip clubs, or you must drink alcohol, or you must marry a person of the same or opposite race.

Why should someone who is not part of the world anymore be telling a living person how to use an item of property that he or she had absolute control over? Life is for the living and things change. These things are often giant fuck yous from the grave as well. Why should society allow it?

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Do your objections extend to inter vivos trusts or just testamentary?
I have no objections at all to inter vivos trusts because that is a decision made by a living person to control his assets during the term of his life. That is no different than handing my daughter a $100 bill with the stipulation that she only spend it on school supplies, and not a gift for her asshole boyfriend that I don't like.

It is my money and I can give it, not give it, or give it with conditions. After I am in the ground, my conditions should no longer apply. I am unaware and unable to respond to changing circumstances, and my time on Earth is done. My daughter now has her time. Just as I had the freedom to give my money to charity, to save it, or to waste it on liquor and whores, she now should have that same freedom, and not be lorded over by dad ruling her from his casket.
  #36  
Old 11-15-2018, 12:32 AM
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So what you're saying is that I can help my husband and protect my kids while I'm alive, but I can't arrange for anything to help them when I'm not. Apparently you're saying screw them. If I can't physically see them being better off once I'm dead, I should give up on them and let the vultures descend.

By the way, "ward of the state"? Sounds like you have control issues.
Control issues? I am the one saying that a person should be free to spend his money how he sees fit. You are the one advocating that you should control your husband's spending from your grave. If there are control issues, it is not from my proposal.

If you husband is unable to conduct his affairs within the reasonable bounds of society, he should be appointed a guardian. If he is otherwise competent, he does not need the financial supervision of a dead person.
  #37  
Old 11-15-2018, 12:39 AM
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Lord Feldon Lord Feldon is offline
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By that reasoning, as a couple previous posters have suggested, why should your designation of particular legatees control once you're in the ground either?
Well, sometimes it doesn't. That's a question that lots of societies have grappled with and they haven't all come to the same conclusion. In common law jurisdictions, you generally have a lot of freedom to decide who inherits (except for your spouse), but that's not the case everywhere. There are plenty of places where you simply don't get to disinherit your children, for example.

Last edited by Lord Feldon; 11-15-2018 at 12:41 AM.
  #38  
Old 11-15-2018, 01:13 AM
Krav Manga Krav Manga is offline
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I have no objections at all to inter vivos trusts because that is a decision made by a living person to control his assets during the term of his life. That is no different than handing my daughter a $100 bill with the stipulation that she only spend it on school supplies, and not a gift for her asshole boyfriend that I don't like.

It is my money and I can give it, not give it, or give it with conditions. After I am in the ground, my conditions should no longer apply. I am unaware and unable to respond to changing circumstances, and my time on Earth is done. My daughter now has her time. Just as I had the freedom to give my money to charity, to save it, or to waste it on liquor and whores, she now should have that same freedom, and not be lorded over by dad ruling her from his casket
Great, so rather than establish a trust by my will, I am going to create an inter vivos trust now, take whatever revenue hit applies to the disposal, and still set rules that will apply after I have died.
  #39  
Old 11-15-2018, 03:24 AM
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Great, so rather than establish a trust by my will, I am going to create an inter vivos trust now, take whatever revenue hit applies to the disposal, and still set rules that will apply after I have died.
No, in my kingdom, your rules will not apply after your death.
  #40  
Old 11-15-2018, 09:57 AM
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No, in my kingdom, your rules will not apply after your death.
To be fair, some of your rules would not apply. Since, it appears, the rule of "I leave my property to my wife" unconditionally would apply, but not "I leave my property to my wife unless she remarries".

Once you say "what you want to happen with your money after you die doesn't matter because you are dead", then it doesn't matter that you wanted your money to go to your wife instead of to the government or the estate lawyers or whoever can get their hands on it.

I want my money to go to my children (for instance) because I want what is best for them. This is the same principle if I leave them my money unconditionally, or if I leave my money to them on condition that they don't get arrested for DUI or go to prison. Certainly there are cases where this principle applies less, or not at all - the idea that "as long as they don't marry a black person" is "wanting what's best for them" is a stretch - but trying to pick out those kinds of cases rather than a blanket "you can do whatever you want - it's your money to dispose of" is easier, and overall more acceptable.

My wife and I just did our wills, as a matter of fact. Part of that was a discussion about trusts and pre-nuptials in the event that one of us dies and the other wants to remarry. We agreed that, if one of us remarries, she (or I) will get a pre-nup so our children get their share rather than the new spouse.

It will probably be her, not me. She will be a rich widow, and is still quite attractive, and I would have no clue in the world how even to start dating again. Plus I smoke cigars.

Regards,
Shodan
  #41  
Old 11-15-2018, 10:26 AM
doreen doreen is online now
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Why should someone who is not part of the world anymore be telling a living person how to use an item of property that he or she had absolute control over? Life is for the living and things change. These things are often giant fuck yous from the grave as well. Why should society allow it?

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It is my money and I can give it, not give it, or give it with conditions. After I am in the ground, my conditions should no longer apply. I am unaware and unable to respond to changing circumstances, and my time on Earth is done. My daughter now has her time. Just as I had the freedom to give my money to charity, to save it, or to waste it on liquor and whores, she now should have that same freedom, and not be lorded over by dad ruling her from his casket.
Suppose I don't leave it to someone with conditions. Suppose instead I divide my property into "parts". I'm sure you'll say it's fine for me to leave half of my property to my daughter, and the other half to my son - but suppose instead I leave my house to my children subject to a life estate for my brother? Is that OK under your rules? Can I leave the income from a trust to my husband during his lifetime and then the trust itself to our kids upon his death? It's not 100% clear to me what exactly you mean by "outright gift".
  #42  
Old 11-15-2018, 11:09 AM
Kimstu Kimstu is offline
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In common law jurisdictions, you generally have a lot of freedom to decide who inherits (except for your spouse), but that's not the case everywhere. There are plenty of places where you simply don't get to disinherit your children, for example.
Good point.


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But there is no reason that we have to take my OP that far. We as a society can say that a person, while they are alive, can determine the disposition of their property to whomever they wish after they are gone. However, that disposition must be absolute, or a possible modification would be that the condition must be immediate and clear.
Sure, we as a society can say that. We can say anything we like. What most of the respondents here are telling you is that there is no convincing logical or ethical justification for saying that.

If we as a society are bound to respect your wishes about which survivors get your property, then I see no logically valid justification for arguing that we don't have to respect your wishes about the conditions under which they can get it.

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Originally Posted by UltraVires
That's why I say that you have the right, while alive, to control the disposition of your property, but must do so absolutely.
How do you intend this to apply to, say, institutional endowments? If somebody leaves an inheritance to found a hospital, do the hospital's subsequent administrators have the right to turn it into a casino, for example? Or do you consider that the existence of the hospital as a separate corporate entity gives it a continuing right to the use of the inheritance in its existing form?

If so, then there's a fairly simple way around your attempt to prohibit conditions on legacies: just set up the legacy as some kind of independently existing legal entity with a stated purpose, and then nobody's allowed to divert that entity's inherited property to a different purpose.

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Originally Posted by UltraVires
Why should someone who is not part of the world anymore be telling a living person how to use an item of property that he or she had absolute control over?
As has been repeatedly pointed out to you, one of the chief problems with this ethical-emotional argument is that it applies just as much to the designation of beneficiaries in the first place as it does to imposing conditions on the beneficiaries.

If you are trying to justify your proposal by invoking the moral unfairness of letting the dead influence the fates of the living, then logically speaking there is no moral right to specify the disposition of property after death at all.

In words of one syllable: No trusts, no wills.
  #43  
Old 11-15-2018, 12:23 PM
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It is my money and I can give it, not give it, or give it with conditions. After I am in the ground, my conditions should no longer apply. I am unaware and unable to respond to changing circumstances, and my time on Earth is done. My daughter now has her time. Just as I had the freedom to give my money to charity, to save it, or to waste it on liquor and whores, she now should have that same freedom, and not be lorded over by dad ruling her from his casket.
That's your business- you can easily just leave your assets as a lump sum to whoever you want.

But why do you care if others choose to put stipulations on it? I mean, I think it's entirely reasonable for a grandparent to set up a trust that would give money to their grandchildren upon the achievement of a few select milestones- like be above a certain age and to have earned a college degree. If nothing else, the looming prospect of receiving a nice payout may be incentive to actually follow through, while getting the inheritance outright might have negative effects.

I would suspect that a lot of it is in how the trust is actually written and interpreted. I mean, how would you enforce the "can't marry a black person" stipulations? Is it one drop? Is it some specified percentage? That would all have to be written into the trust and interpreted by the trustee(s).

A common one is to keep the money "in the family", meaning that with generation skipping trusts (typically for tax avoidance purposes), there's often a desire to only award the money to *their* descendants, and not to those descendants' spouses in community property states.

In other words, if my grandmother left me money in a trust, she might set it up in a way that makes me jump through certain hoops to ensure that my wife wouldn't ever see a dime of it in a divorce, or have any control over it. That wouldn't be the case if it was just given to me outright- it would be community property, and in case of any divorce, half would be hers by right.
  #44  
Old 11-15-2018, 04:36 PM
UltraVires UltraVires is offline
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To be fair, some of your rules would not apply. Since, it appears, the rule of "I leave my property to my wife" unconditionally would apply, but not "I leave my property to my wife unless she remarries".

Once you say "what you want to happen with your money after you die doesn't matter because you are dead", then it doesn't matter that you wanted your money to go to your wife instead of to the government or the estate lawyers or whoever can get their hands on it.

I want my money to go to my children (for instance) because I want what is best for them. This is the same principle if I leave them my money unconditionally, or if I leave my money to them on condition that they don't get arrested for DUI or go to prison. Certainly there are cases where this principle applies less, or not at all - the idea that "as long as they don't marry a black person" is "wanting what's best for them" is a stretch - but trying to pick out those kinds of cases rather than a blanket "you can do whatever you want - it's your money to dispose of" is easier, and overall more acceptable.

My wife and I just did our wills, as a matter of fact. Part of that was a discussion about trusts and pre-nuptials in the event that one of us dies and the other wants to remarry. We agreed that, if one of us remarries, she (or I) will get a pre-nup so our children get their share rather than the new spouse.

It will probably be her, not me. She will be a rich widow, and is still quite attractive, and I would have no clue in the world how even to start dating again. Plus I smoke cigars.

Regards,
Shodan
But again, the thought in my OP does not have to be taken to such an extreme conclusion. We can say that a testator can control the disposition of his or her property, but it must be unconditional.

Of course you want what is best for your kids. But at what point do they get to decide what's best for them? Shouldn't we each as individuals have the right to determine that for ourselves, or should grandpa who died in 1950 get to decide?

Under your personal situation, is there anything from stopping your wife, after you pass on, from spending all of the money travelling the world with her new 19 year old husband and blowing all of the money so that the kids end up with nothing? (And no, she didn't tell me that. )

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Originally Posted by doreen View Post
Suppose I don't leave it to someone with conditions. Suppose instead I divide my property into "parts". I'm sure you'll say it's fine for me to leave half of my property to my daughter, and the other half to my son - but suppose instead I leave my house to my children subject to a life estate for my brother? Is that OK under your rules? Can I leave the income from a trust to my husband during his lifetime and then the trust itself to our kids upon his death? It's not 100% clear to me what exactly you mean by "outright gift".
1) Agreed, you can leave half to your daughter and the other half to the son.

2) Agreed. You may leave a life estate to brother and the remainder to the children. That is not a conditional gift. It is in the sense that the brother has to remain alive, but like all of us, he will pass away at some point. This, IMHO, is an outright gift simply split between people.

3) Agreed. You are not placing any conditions on the gift, but merely splitting it between people. Your husband gets the income from the trust and the kids get the corpus of it. Although I am more leery of this sort of thing because while your husband is alive, there is this pool of money that nobody can touch because of your dead hand wishes. I would be willing to compromise on this one, so long as if at any time both your husband and your kids agree to liquidate the trust and have it go to whomever, then they should have the absolute right to do that.
  #45  
Old 11-15-2018, 08:49 PM
Yllaria Yllaria is online now
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Control issues? I am the one saying that a person should be free to spend his money how he sees fit. You are the one advocating that you should control your husband's spending from your grave. If there are control issues, it is not from my proposal.

If you husband is unable to conduct his affairs within the reasonable bounds of society, he should be appointed a guardian. If he is otherwise competent, he does not need the financial supervision of a dead person.
No. I'm not controlling anyone's spending (even theoretically - I have no husband and the kids will each get an equal share). I'm controlling, again, theoretically, the timing of disbursals or the final distribution of property. You're the one freaking out about **shudder** Control! Control! Control! If anyone places conditions on something they're giving me they're turning me into a CHILD!!!

As an amusing aside, one of my grandmothers used to occasionally sit with her elderly daughter, my aunt, and they'd list the properties that were "stolen" from the family over the generations, by men who remarried, died, and left everything to the new wife who then willed it all to her relatives rather than his kids. Of course Grandma and Aunt, after all that complaining, died intestate. I was taking care of Aunt as she died. She told me to tell her husband (wheelchair bound and half deaf) that he needed to will me their house, because I was such a help and her family had paid the down payment for it. I didn't touch that one with a ten foot pole.

Oh, and BTW, the provisions of wills can be set aside if all heirs agree and are willing to sign a document attesting their approval of the new arrangement. At least in the states that I'm familiar with, at the times I was dealing with it. So if the parents disinherit child D, but children A, B, and C think that's bull, they can agree to change the disbursement of the estate. That wouldn't work with trusts. At lease with living trusts any complaints from beneficiaries have to be lodged within the first year of the trust being in place. Again, other states and other times may vary.
  #46  
Old 11-16-2018, 07:51 AM
Smitty Smitty is offline
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I think a perfectly reasonable answer to why it is morally OK for me to put stipulations on how my money is spent after I die is because I am the one who earned it. You can spend (or not spend) the money you earn however the hell you like. But I can morally put stipulations on the money that I earned that is being gifted to you, whether I am alive or not.
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  #47  
Old 11-16-2018, 12:37 PM
Shodan Shodan is offline
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But again, the thought in my OP does not have to be taken to such an extreme conclusion. We can say that a testator can control the disposition of his or her property, but it must be unconditional.
We could, but I don't think it is a good idea. I like the idea of putting conditions, where appropriate, on what the people who get my money can do with it. In general, I don't feel the need to do that, but I can see how it might be a good idea for other situations.
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Of course you want what is best for your kids. But at what point do they get to decide what's best for them?
As Smitty says, at the point where they get my money rather than their own.
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Under your personal situation, is there anything from stopping your wife, after you pass on, from spending all of the money travelling the world with her new 19 year old husband and blowing all of the money so that the kids end up with nothing? (And no, she didn't tell me that. )
Nothing is stopping her. But we are talking about putting conditions on people you don't trust.

Plus, the 19 year old gigolos had best be careful. Who outsmarts who is highly likely not to turn out as they expect. When my wife wants to ruthlessly exploit her love toys for carnal purposes, she knows how to do it so the love toy likes it.

Trust me on this.

Regards,
Shodan
  #48  
Old 11-16-2018, 03:56 PM
Tastes of Chocolate Tastes of Chocolate is offline
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If we decide that a dead people no longer has rights over property, then would others still be required to honor contracts to a dead person's estate?

Insurance payouts? Debts? Retirement funds? Tax refunds?

If a person that dies can not control outgoing money, then do they have a right to incoming?
  #49  
Old 11-16-2018, 05:40 PM
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Originally Posted by UltraVires View Post

Of course you want what is best for your kids. But at what point do they get to decide what's best for them? Shouldn't we each as individuals have the right to determine that for ourselves, or should grandpa who died in 1950 get to decide?
Do you think kids under the age of majority should get all their inheritance immediately because control is bad? That the common limitations about disbursing money to them except for their welfare and education are bad?
Our trust had provisions doling out money to our kids in chunks until they reached a reasonable age. That way if they made mistakes they could recover. They are both older than our maximum disbursement age, and so would get everything right now, but I don't regret writing that into the trust. I trust you've seen many similar provisions.
  #50  
Old 11-16-2018, 10:15 PM
Krav Manga Krav Manga is offline
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Quote:
Originally Posted by UltraVires View Post
No, in my kingdom, your rules will not apply after your death.
How is that going to work? Once I got the assets to a trust they are no longer mine, they are the trustee's. What relevance will my death have to anything?
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