After you pass away, you probably do not want your own and your family’s “dirty laundry” aired for the whole world to see. The repercussions it could have for your surviving family members could be devastating, not to mention what could happen to your own lasting reputation and legacy. If you pass away with just a will for your estate plan, this might be exactly the case for your family’s future.
A will is public knowledge. As our McKinney estate planning law blog has discussed in previous blog entries, upon your death and during the probate period, creditors are notified, and essentially the contents of the will are revealed. With a trust in place, though, you will not have this issue.
In the cases where a trust has in fact been created, the details of any relevant documents are kept private. Transactions are handled with discretion and are not broadcast for just anyone to locate and research.
An Unfortunate Legacy Made Public
“No man can put a chain about the ankle of his fellow man without at last finding the other end fastened about his own neck.” – Frederick Douglass
John Willingham, the great-great-great-great uncle of Attorney Taylor Willingham, left a last will and testament behind upon his death that stirs up controversy and some ashamedness in Taylor today. However, it serves as a fantastic example as to why it is so important to protect your family’s private matters with a trust, rather than dropping everything into a will.
Here is the full will of John Willingham of the 18th century:
THE LAST WILL AND TESTAMENT OF JOHN WILLINGHAM OF LUNENBURG CO., VIRGINIA -- In the Name of God Amen I John Willingham of the County of Lunenburg and parish of Cumberland being sick and weak and only considering the uncertainty of human life do make and ordain this my last Will and Testament[.] First and principally I commit my Soul into the hands of my blessed Maker trusting in his Mercies and in the Mercies of my dear Redeemer for the Remission of all my sins desiring my Body may be decently enter'd at the discretion of my Executrix hereinafter Named and as to my Estate that it has pleased God to bless my withall after all my just Debts are punctually paid[.] I Give and Dispose of it in the following manner: Item I Give and bequeath to my son Thomas one shilling sterling [--] Item I Give and bequeath to my son John one shilling sterling [--] Item I Give and bequeath to my daughter Christian my Negro boy Peter (I having already them two sons what I desired for them) [--] Item I Give and bequeath to my son Gerrald my Negro boy Jamey, one feather bed and furniture two cows and calves two sows and pigs, one mare and the land and plantation whereon I now live and also ninety acres of land joining aforesaid plantation to him and his heirs and assigns forever. Desiring my beloved wife have possession of the said land during her widowhood or life. And as to the residue remainder of my estate be it of what nature soever it will I lend it to my beloved wife during her widowhood or life and then do give and bequeath it to be equally divided between my two daughters Viz. Amey and Betty unless my beloved wife should think fit to give proportion and I do appoint and ordain my beloved wife Mary my whole and sole executrix of this my last will and testament making void and null all other wills by me made here and do acknowledge this only to be my last will and testament. In witness whereof I have hereunto set my hand and seal this 2nd day of February 1750. John Willingham, LS
When Attorney Willingham first read this will, he was shocked. It was probably the first time in his life that he was ashamed of his last name. For his whole life, he has loved his last name, finding it to be strong. He has always considered his father, grandfather, grandmother, and every Willingham he has ever known as a great person.
But then, there is this will from a far-distant uncle. The past must sometimes be seen as a foreign country, where the denizens lived with different outlooks, circumstances, and understandings. However, Taylor has said he struggles with the idea that someone in his family line claimed ownership over another human being. Obviously, anyone reading this today would be struck by the bequest of human beings to his children. That he was a slaveholder, that he left his slaves as pieces of property to his various children, is what is now associated with his great uncle’s legacy and reputation. To read his uncle’s rather casual mention of his slaves forever clouds his opinion, and he is sure that holds true for anyone who reads this will.
An Embarrassing Will Can Happen to Any Lineage
You might think to yourself, “There is nothing I could put into my will that would look as bad as owning slaves.” However, take a moment to consider how times have changed just in our lifetimes. No more than 20 years ago, it was common for parents to disinherit their gay son or daughter. Maybe you have changed your position on this issue over the past two decades. Often what is acceptable today will not be in the future. Perhaps keeping the core beliefs of your family private is not such a bad idea.
How might the privacy that you gain from doing a trust instead of a will be applicable today? Imagine that you choose to disinherit one of your kids, whatever the reason may be. This matter should be kept private, it should pertain only to those directly affected and not to the world at large. Keep it in the family and you will be happier for it later. Even if it never comes back up in your life, you will find immediate peace of mind in knowing that it is not being broadcasted.
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