SIDEBAR: Pastoral Probate Pitfalls of How Encouraging People To Do Estate Planning Can Blow Up in Your Face
by John N. Vaughan
As a pastor, one of your primary jobs is to look out for the best of your flock. Over the years, you have heard advice from professionals and read in the news that everyone needs a will, trust, or some kind of estate planning. Maybe you have recommended from the pulpit that people get their estate-planning house in order or you have hosted a will seminar at your church. More likely, you have individually encouraged members of your church to prepare a will. It seems like the right thing to do in helping those who attend your church plan for the future. What could possibly go wrong?
Pastors can fall into several pitfalls when it comes to encouraging their parishioners to undertake estate planning. Most of the issues arise when pastors personally involve themselves in the process instead of encouraging their people to work through third parties. When a pastor or church leader personally takes part in the estate planning of those attending their church, the influence of the pastor can unintentionally cloud what would otherwise be a clean-cut estate plan. When a family member does not get the portion of the estate he expected, or when a family is not happy that their relative slighted them by giving a portion to ministry, they will use everything in their power to cast a negative light on the creation and signing of the estate-planning documents. Pastors and church leaders can easily come under accusations of undue influence or duress if they are involved in their parishioner’s estate planning, even more so if the decedent made his estate-planning decisions late in life or while under medical care.
Follow these steps to avoid falling into a probate pothole:
1. Do not push specific ministry gifts. Churchgoers are a charitable audience, often working out of hearts of compassion and loyalty to bless the endeavors of the churches and ministries they have seen prosper or through which they have been personally touched. There should be no concern in encouraging those who attend your church to make a gift to ministry or a final tithe from their estate when doing estate planning. Where pastors run afoul is when they encourage giving to specific ministries, particularly the ministries, general fund, or special projects of the church. If asked to recommend a charitable organization for giving through an estate plan, it is best to turn the question around and ask what ministry the individual is most passionate about or through which that individual has seen the most fruit for the Kingdom. It is generally best to pull out the names of ministries from churchgoers.
2. Avoid getting entangled as a party in the probate. Caring for a body of believers while also pursuing evangelism is more than a full-time job. But sometimes, out of a desire to help, pastors will accept requests from those in their church to serve as executor or personal representative of an estate or sometimes even trustee of funds left in an estate. The job of executor or personal representative is best left to those close to the decedent and those who have the time to work through the details of an estate. The job of trustee, if not someone close to the decedent, is best handled by someone versed in money management with the time to track investments and manage payments.
3. Do not hover during estate-planning sessions. Many times when an individual is in poor health and decides to do last-minute estate planning, he may ask his pastor to recommend a lawyer. The pastor may even be around when the individual is consulting with the attorney.
Estate-planning moments are unique in a person’s life. People, especially those who are older or in poor health, are often open to influence from those in the room during an estate-planning session. Any good lawyer will work to minimize outside influences and try to determine the desires of the individual by interviewing him prior to drafting a will or trust. It is in a pastor’s best interest to stay away during these sessions. In the event a decedent gives a gift through his estate to the church or one of its ministries and surviving family members realize the pastor was there during the attorney interview, it will cast a bad light on the final document and may even be enough to invalidate the document.
4. Offer multiple names when asked, not just one. People often ask their pastor whom they would recommend for an attorney. People in your church want a Christian attorney and look to you to name someone they can trust and who is also skilled in the area of law they need. Do research and come up with names of multiple attorneys. In doing so, you are providing them direction while leaving the ultimate attorney choice up to them. If you only name attorneys who attend your church or you only give one name, it can create an air of favoritism and can cause suspicious family members to question whether you have a relationship with that attorney that benefits your church.
5. Do not act as a witness for estate-planning documents. Most estate-planning documents require witnesses to be present when the person who created the will signs these documents. These witnesses acknowledge they were present at the signing and claim knowledge as to the state of mind of the individual creating the documents. Avoid being one of those witnesses, especially if the person includes any ministry gift in the terms of the documents. Acting as a witness can subject you to a subpoena from a probate court to testify as to what happened at the document signing. But even more, your involvement in the execution of the documents could create questions as to whether you and your position as pastor influenced the decedent’s estate-planning decisions, especially in relation to charitable gifts. If you are asked to witness documents, refuse and help them find someone else who will truly be seen as an unbiased third party.
6. Avoid receiving any portion of an estate as a personal gift. Some church members, instead of giving a gift to their church or a ministry, will direct a distribution out of their estate for the personal benefit of their pastor or to the leader of a ministry. This arrangement is rife with problems and can likely cause a challenge to an estate distribution from the family members who are receiving less due to the gift to a pastor. If someone wants to bless you for your ministry to them and their family, make it clear that you will not accept an individual bequest out of their estate. While your people may want to bless you and your family to show appreciation for your service, have them direct any funds to further the Lord’s kingdom.
JOHN N. VAUGHAN, Springfield, Missouri