The other day I finished a 70 mile bicycling route with my regular buddies. We ride those “road bikes” like the ones you see on the Tour de France, typically at speeds of 20 – 24 miles per hour or more, which for a bunch of middle aged lawyers, doctors and businessmen is pretty good. On Saturdays we usually ride anywhere from 40-50 miles and on Sundays we may do longer rides. Our group likes to start out early so we have the rest of the day with our family, and to beat the heat.

 But lately it’s been so blistering hot that you have to worry about heat stroke. Since the afternoon rains have been sporadic, at best, the ground never seems to lose the heat generated from the day before. As soon as the morning sun comes up we’re getting rays not only from the sun itself but also from heat radiating back off the road. I drink plenty of Gatorade along the way, but that sun still saps all of my energy and then some.

 I got home, stripped down to my bike shorts and jumped into the pool. I could feel the heat emanating from my body. It even felt like my finger tips were on fire.

Madison, my nine year old daughter, was in the pool when I arrived. She swam over to remind me that I promised to play with her when I returned. She wanted to play a game of pool tag, where I’m “it” and I have to catch her and then vice versa. I tried, but was so exhausted from the bike ride that I got out of the pool to rest in a lounge chair.

“You promised!” Madi shrieked. “You always tell me that you should never break a promise!” Having your own child point out to you your broken promises goes right to your core. Promise I did. So I mustered up the energy, jumped back into the pool and engaged in a spirited game of pool tag.

So be careful what you promise. And that actually leads me to today’s estate planning topic on promises that you may have made your loved ones. I’ll use a fictional person, “Foster” as my example to illustrate my point not to make promises outside of your will or trust, or if you do to make sure you keep everyone up to date about your intent.

“Foster” had a trust that declared his wishes. He carefully worked with his attorney to draft and implement this trust. Foster then transferred his assets into his trust, and completed a pour over will that would, at his demise, transfer any assets that Foster forgot into his trust.

Foster was in a second marriage, and could not rely on his children to support his wife should she survive him. He decided to leave most of his trust assets in a marital trust to benefit his wife for the remainder of her lifetime, realizing that his estate would not benefit his children until after his wife’s death. Yet Foster still wanted his children to get something at his death. So Foster’s trust provided a significant bequest to each child at his death, with the balance in trust for his wife.

Foster wrote his children and told them of his plans, including the significant bequest that they would not have to wait until his wife’s death to receive. He went on to explain that the rest of his estate would be held in trust for his wife, so that each child would not receive the balance of their inheritance until after his wife died. He wanted to make sure that she was well provided for and had enough to live on for the rest of her life.

After the stock market crash Foster realized that he could not live up to the promises that he had made his children and still provide for his wife in the manner that he wanted.  So he returned to his attorney’s office and changed his trust. No longer would the children receive a significant bequest at Foster’s death. Because his estate was depleted, he wanted the entire balance in trust for his wife. Only upon her death (assuming she survived him) would the children receive their inheritance.

Foster, however, did not write or otherwise advise his children of the change in plans. Each one of them still harbored the expectation that they would be receiving a significant sum upon Foster’s death. When Foster died the children were surprised to learn that Foster’s trust did not provide them anything until their stepmother passed.

Some of the children wrongfully believed that the stepmother was behind the broken promise. All of the children expressed feelings that their father had betrayed them. In any event, the broken promise led to division within the family, and hurt feelings.

All of this could have been avoided through communication. Perhaps Foster was embarrassed that he could not provide for both his wife and his children at the same time. Maybe Foster didn’t want to deal with telling his children that he had to break one of his promises to keep a promise that he had made his wife. It certainly would have been better had he told the children himself, rather than the children learning from reading a cold legal document.

If you have made a promise to a loved one, whether to a spouse, a child, a grandchild or some other loved one, and if you have had second thoughts on that promise, make sure that you keep everyone’s expectations in line. Otherwise hurt feelings are likely to result, and in a worse case scenario legal accusations might be filed by one beneficiary against another.

Even though I thought I would suffer from heat stroke, I lived up to Madison’s expectations this past weekend. Let’s hope I’m always able to do that.

©2009 Craig R. Hersch