When Is An Equal Distribution In A Will Fair?

By Marc S. Galella, Esq. of R. C. Shea & Associates

  Many times when I am drafting a Last Will and Testament for parents, they will tell me that they want to be fair and are leaving all of their assets equally among their children. Many people believe that this is the “fair” way to handle their assets.  But is it always “fair”?

  Several years ago, I had an instance where a mother (the surviving parent) met with me and told me that she wanted to leave all of her assets in equal shares to her two sons.  Seems “fair” right?  Maybe… After she passed away, the older of the two sons (the Executor of the Will) met with me and told the following to me: When the older son graduated high school, he joined the military, then went and learned to be an electrician, eventually owning his own electrical contracting business. He never sought a penny from his parents after he graduated high school. The younger son went to college, got a degree in ancient Mayan Art, could not find a job and then went back for a Masters Degree in ancient Mayan Art, all at his parent’s expense. He never found a steady job and lived at home with his parents who continue to pay for all of his expenses, bought him cars, and never charged him room and board for over 30 years. Basically, his parents depleted their estates supporting a son who never went out on his own. The Executor then asked me if I thought an equal distribution of the remaining assets in the estate between him and his younger brother was “fair”. My response was what I thought was not relevant; it was what his mother thought and obviously she thought the equal distribution was “fair”.

  In another instance, a father wanted to leave his estate solely to his son who did not have a well-paying job and exclude his daughter who ran her own business and made more money in a year than the father made in his entire life.  Was that “fair”? Dad seem to think so…at that time.  Several years later he came back and changed his Will because his daughter’s business had failed and now she could not find a new job.  Was that “fair”?

  These scenarios have played out numerous times in my will drafting career. Sometimes a parent will give money to one child during their life and not to the other children. Sometimes a child will give a higher level of care to the parent than the other children. Maybe one child, for reasons beyond their control, may have greater needs than the other children. As you can see, “equal” is not always “fair”. What is important is that when you are making out a Will, you consider whether an equal distribution is “fair” under the circumstances in your life.

  Please contact R.C. Shea & Associates, Attorneys at Law, for all your legal needs. 732-505-1212.