One Wrong Checkbox- What a New IRS Ruling Teaches Grandparents About Gifts in Trust

A married couple did everything right. One spouse signed an irrevocable trust whose primary purpose was to benefit descendants, funded it from investment accounts, and told the accountant the trust was meant to benefit future generations. The plan was to make the gift exempt from the generation-skipping transfer (GST) tax. Then the accountant checked the wrong box on both spouses' gift tax returns.

On October 2, 2026, the IRS released two companion private letter rulings, PLR 202640002 and PLR 202640005, giving each spouse 120 days to fix the mistake. The couple got a happy ending. The way they got it carries lessons for any family that funds a long-term trust meant to benefit grandchildren.

The GST Tax in Plain English

The GST tax is a second, flat tax at the top estate tax rate (40%) on certain transfers that skip a generation. It applies on top of any gift or estate tax. The Code reaches three kinds of generation-skipping transfers: a direct gift to a grandchild or similar "skip person," a distribution from a trust to one, and the point at which a trust passes to that younger generation. Most gifts to grandchildren never incur the tax, because of the annual exclusion and the exemption.

Each person has a GST exemption, which for 2026 is $15 million, matching the estate and gift exclusion. The exemption does nothing until it is allocated to a gift or trust. A sufficient allocation gives the transfer a zero inclusion ratio, generally shielding it and its future growth from GST tax. Later additions to the trust need their own allocation. Miss the allocation, and decades of appreciation can sit exposed to a 40% tax when the grandchildren finally receive it.

The Checkbox: Automatic Allocation and the Opt-out

The Internal Revenue Code tries to help. Under § 2632(c), a donor's unused GST exemption is allocated automatically to an "indirect skip," a taxable gift to a "GST trust." That term covers many trusts that could pass wealth to grandchildren, but the statute carves out several common designs, so not every such trust qualifies. A donor may opt out of automatic allocation under § 2632(c)(5) by making an election on the federal gift tax return, Form 709.

There are sound reasons to opt out, for example when a trust will benefit only children and the donor wants to save exemption for later. Here there was no such reason. The rulings state the accountant "mistakenly" made the opt-out election on each spouse's return. The plan said one thing; the returns said the opposite.

Why Gift-splitting Doubled the Problem

The couple consented to gift-splitting under § 2513, which lets spouses treat a gift by one as made half by each. It is a common way to use both spouses' exclusions on a single gift.

For GST purposes, though, each spouse is treated as the transferor of half the gift. Each spouse's exemption applies only to that spouse's half, and the opt-out sat on both returns. One wrong election became two, and fixing it took two separate ruling requests. That is why the IRS issued two rulings for one gift.

How the IRS Fixed It

The next year, the couple hired a new accountant, who caught the error together with the attorney who drafted the trust. Each spouse then asked the IRS for an extension of time under § 2642(g) and Treas. Reg. § 26.2642-7. Those final regulations, effective May 6, 2024, set the specific standards for this type of GST relief and expressly allow relief from an erroneous opt-out. Both rulings were decided under them.

The regulations require two showings. First, the donor acted reasonably and in good faith, judged by factors such as intent, lack of awareness despite reasonable diligence, and reasonable reliance on a qualified tax professional. Second, relief will not prejudice the government, which looks for hindsight, delay, and intervening taxable distributions.

The facts here fit. The donor had told the first accountant the trust was for future generations. Each spouse represented that the trust had made no distributions, that the spouse had made no earlier GST gifts, and that enough exemption remained. The IRS found the regulations satisfied and gave each spouse 120 days to allocate exemption on an amended Form 709.

Why not simply make a late allocation, which the Code allows without IRS permission? Because under § 2642(b)(3), a late allocation generally uses the trust's value when the allocation is made, not when the gift was made. If the trust has grown, covering the same gift takes more exemption, and if it has grown past the exemption remaining, part of the trust stays exposed. A timely allocation instead uses the gift's value as finally determined for gift tax purposes. The relief the IRS granted extended the time for that allocation, so it can rely on the original gift value. That is exactly why the no-prejudice showing matters: the IRS will not let a family choose its valuation date with hindsight.

Don't Count on a Rescue

A private letter ruling binds the IRS only as to the taxpayer who asked for it; under § 6110(k)(3) others cannot cite it as precedent. It shows how the IRS is thinking, nothing more.

The rescue is also expensive and slow. Each request carries the full letter-ruling user fee plus professional fees. These requests went in on December 30, 2025, and the rulings are dated June 30, 2026: six months of waiting, times two. Had the IRS found the error first, or had the trust already paid out to grandchildren, the outcome could have been harder.

Why this Matters if You Aren't a Millionaire

Most families reading this will never owe GST tax at a $15 million exemption. The lesson is broader: elections on a tax return can quietly defeat a carefully drafted plan. Three situations illustrate the risk.

• Gifts to Irrevocable Trusts Generally: Any gift to a trust above the $19,000 annual exclusion typically requires a Form 709. That includes many asset protection trusts used in Medicaid planning. GST allocation is rarely the main concern there; those trusts are built around the look-back period, income, and control. But the return is often prepared by someone who never saw the trust, and every election on it should match what the trust was designed to do.

• Long-term Trusts for Grandchildren: Exemption amounts change with Congress. Allocating GST exemption to a trust that may last decades is inexpensive insurance against a lower future exemption and a larger trust.

• Portability After a Spouse's Death:. The same week, in PLR 202640003, the IRS gave an estate below the filing threshold 120 days to file a late Form 706 and elect portability of the deceased spouse's unused exclusion. That election is optional, easy to overlook, and can be worth millions to the survivor's heirs. It is the version of this mistake most families are likely to face.

Don't Do-it-Yourself

Even professionals can make errors.  The difference is that when a professional makes an error, they typically invest time and expense to correct the mistake, and in the worst case, have insurance to cover for damages.  If you make a mistake, you pay a professional to fix the problem and, in the worst case, incur the cost any resulting damages.

A Short Checklist for Families

Confirm the Plan:  Ask for it in writing before any Form 709 is signed. The drafting attorney and the preparer should agree on whether exemption is to be allocated. A one-page letter costs far less than a ruling request.

Review the Return: Ask the drafting attorney to review the gift tax return, preferably well in advance of a filing deadline.

Prefer an Affirmative Allocation:  Relying on the automatic rules, rather than affirmative allocations or elections, may not cover every trust.

Check Both Returns:  If you split gifts, check both returns.  Each spouse's elections must match the plan.

Prior Returns Review:  Especially when you change preparers, have the prior returns reviewed. In these rulings, a new accountant caught the error.

Act Quickly: Quick corrective action is necessary  upon finding a mistake.  You should talk with counsel before the trust makes distributions.

Keep Records:  We advise clients with complex trusts to keep and maintain every Form 709 permanently. GST and exemption questions can surface decades later, at the death of the donor or a beneficiary.

The Bottom Line

A trust is only as good as the paperwork that follows it. This couple was fortunate: their advisers caught the error, the IRS was forgiving, and the trust had not yet paid anything out. The better path is to make sure the gift tax return says what your plan says the first time.

Sorting Out SSNs, TINs, ITINs, and EINs: Which Number Goes on the Form?

At a glance

• "TIN" is the umbrella term. Social Security numbers, EINs, and ITINs are all TINs..
• When a form asks for a "TIN," it wants the number of whoever owns the account: you, your trust, an estate, or a business.
• An "employer" identification number isn't just for employers. Trusts and estates use them too.
• A trust's number can change. A revocable trust usually uses your Social Security number while you are alive, and it needs its own EIN after you die.
• When in doubt, send the form to your attorney or accountant through a secure channel before you sign it.

If tax identification numbers confuse you, you're in good company. The rules are clear enough on paper, but the names are misleading, and the forms don't always help. Even professionals who don't apply for these numbers regularly mix them up.

Take the employer identification number, or EIN. Despite its name, it isn't limited to employers. Your trust may need one even though it has never hired anyone. That's one reason many banks, brokers, and insurance companies ask instead for a "TIN," or taxpayer identification number. They aren't using the wrong term. TIN is the broader one, and it covers whichever number belongs to the account owner.

Let's sort it out.

TIN Is the Umbrella

The IRS needs a way to identify every person and entity it deals with. "Taxpayer Identification Number" is its general term for all of these numbers. The IRS lists five:

• Social Security number (SSN). Issued by the Social Security Administration to individuals.

• Employer identification number (EIN). Used by businesses, estates, and trusts.

• Individual taxpayer identification number (ITIN). For certain people who can't get a Social Security number, such as some nonresident and resident aliens and their spouses and dependents.

• Adoption taxpayer identification number (ATIN). A temporary number for a child being adopted.

• Preparer tax identification number (PTIN). For paid tax return preparers.

For most families, only the first three matter. SSNs and ITINs identify people. EINs identify everything else.

Which Number Goes on the Form?

The best clue is a simple question: who owns the account, asset, or benefit? If you own it, use your number. If your trust owns it, use the trust's number, whatever that is right now.

Which Number Goes on the Form?

Whose account or asset is it?	Number to use	Keep in mind
Yours, in your own name	Your SSN	An ITIN if you aren’t eligible for an SSN
Your revocable trust, while you are alive	Usually your SSN	The trust is ignored for income tax while you live; no separate return
A joint revocable trust, both spouses alive	Usually one spouse’s SSN	Use the number your attorney designated, consistently
A joint trust after the first death	Survivor’s share: survivor’s SSN. Family or bypass trust: its own EIN	The split often happens at the first death, not the second
A revocable trust after the grantor dies	The trust’s new EIN	Never the decedent’s SSN
An irrevocable trust taxed to the grantor, such as many Medicaid asset protection trusts	Often the trust’s EIN; sometimes the grantor’s SSN	Check the certification of trust or ask the drafting attorney
Any other irrevocable trust	The trust’s EIN	The trust files its own Form 1041
A probate estate	The estate’s EIN	Separate from any trust’s EIN
A business with employees, a partnership, or a corporation	The business’s EIN	One EIN per entity; never shared
A sole proprietorship or single-member LLC with no employees	Often the owner’s SSN	Excise taxes, retirement plans, or a bank’s policy may still require an EIN

A general guide only. The trust document and the way the trust is taxed control, so confirm the number with your attorney or accountant before you sign.

Trusts: The Number Follows the Tax Status

While you are alive, a revocable trust is usually a "grantor trust." For income tax purposes it is ignored: its income is reported on your own return, and it typically uses your Social Security number.

Irrevocable trusts vary. Some are taxed as separate taxpayers and always need their own EIN. Others, including many Medicaid asset protection trusts, are still taxed to the grantor. Those trusts often get an EIN anyway, but the trust's income may still be reported to the grantor. Your certification of trust, or the attorney or accountant who set up the trust, can tell you which number it uses.

When the grantor dies, a revocable trust usually becomes irrevocable and a separate taxpayer, and it needs its own EIN. Getting that application right matters more than most people expect; see our article on getting the trust's EIN right after a death.

Applying for an EIN Without an SSN or ITIN

To apply online, the IRS requires the Social Security number or ITIN of the "responsible party," the person who actually controls the entity (IRS). If the person in control has neither, the choices are:

• Get an ITIN first, then apply online.

• Apply on paper. File Form SS-4 by fax or mail. Keep a copy of the signed Form SS-4. The online tool shows the assignment notice on screen. The fax and mail paths do not, and that copy is what the next institution will ask for.

Don't count on the IRS phone line if you are not an international applicant  Phone applications are only for applicants with no legal residence or principal place of business in the United States. A U.S. trustee who has neither an SSN nor an ITIN will be turned away and told to fax or mail Form SS-4.

An attorney or accountant can help as an authorized third-party designee, with your signed authorization. A designee can't stand in as the responsible party, though. That has to be the person who really controls the entity.

SSN or ITIN: What's the Difference?

A Social Security number is tied to work authorization and to Social Security benefits at retirement or disability. An ITIN is only for taxes. It lets someone who can't get a Social Security number, such as a nonresident who owns U.S. property or a business, file returns and pay tax. It does not authorize work or create Social Security benefits.

Still Confused?

Ask before you sign. Your attorney or accountant can usually identify the right number in minutes, and a wrong number on an account application can take months to untangle.

If you're not sure which number a form wants, send it to us before you complete it, with a note about what you're trying to do. Please use a secure portal or encrypted email rather than ordinary email or fax, especially once a Social Security number is on the page. We'll fill in the correct number and send it back.

Bottom Line

"TIN" is the family name; SSN, EIN, and ITIN are its members. Match the number to whoever owns the account, and remember that a trust's number can change with its tax status, most often at a death. When the form and the facts don't line up, a quick question now saves a lot of trouble later.

The Trust's New Tax ID: A Simple Form That Can Cause Big Problems

 

At a glance

• When the grantor dies, a revocable trust usually becomes irrevocable and needs its own employer identification number (EIN).
• The application is free and online, but a few entries decide where IRS mail goes and which years the IRS expects returns.
• A wrong start date, a wrong entity type, or the decedent named as responsible party can produce years of IRS notices.
• A trust can owe no tax and still have to file Form 1041.
• If you already have an EIN, you can confirm what the IRS has on file with one phone call.

Seemingly simple decisions can cause real difficulty in administering an estate. One of them is how to get the trust its new tax identification number after the grantor dies: whether the successor trustee applies alone, accepts help from a bank teller or a friend, or asks an attorney or accountant to handle it.

What Changes at Death

The grantor, sometimes called the settlor, is the person who creates the trust and usually puts property into it. While the grantor is alive, a revocable trust is generally a "grantor trust" for income tax purposes. It has no separate tax existence. In most cases it uses the grantor's Social Security number, and the grantor reports the trust's income on a personal return.

When the last grantor dies, that changes. The trust becomes irrevocable and a separate taxpayer, and it needs its own EIN (Form SS-4 instructions; Treas. Reg. § 301.6109-1(a)(2)). A trust cannot keep using a dead person's Social Security number.  

Two early mistakes are common: assuming nothing needs to be done with a joint trust when the first spouse dies, and assuming that a trust with little or no income needs neither its own EIN nor a tax return.

    • Joint trusts need attention at the first death. In many joint trusts, the first spouse's death creates an irrevocable family or bypass trust that needs its own EIN right away. The surviving spouse's share usually keeps using the survivor's Social Security number. Treating the whole trust as unchanged until the second death is a common mistake.

    • Filing is not limited to trusts that owe tax. A domestic trust must file Form 1041 if it has any taxable income, if it has gross income of $600 or more, or if it has a nonresident-alien beneficiary (Form 1041 instructions). A trust can owe no tax and still have to file.

Two other decisions come up at the same time:

    • The § 645 election. A revocable trust can elect to be treated as part of the decedent's estate for income tax purposes (Form 8855). The election can allow a fiscal year and a single return. It is easy to miss if no one raises it.

    • Form 56. Form 56 tells the IRS who the fiduciary is.

Why the Paperwork Matters

Institutions need to know the trust's exact name, who the trustee is, and what the trustee may do. In Ohio, a certification of trust or Certificate of Trust, gives them that without disclosing the whole trust document. A memorandum of trust is used mainly when recording real estate ( and in most cases is unnecessary if a certificate trust is recorded). These documents often show the trust's EIN as well.

When an attorney or accountant handles the application and the certification together, both are usually done within a few days and agree with each other. Increasingly, though, successor trustees apply on their own, or rely on well-meaning helpers with neither legal nor tax training. The results range from frustrating to costly.

What Goes Wrong: Seven Cases

Each of these is drawn from actual cases.

    • The bank teller. A successor trustee goes to the bank to reach the trust's account. A helpful teller explains that the trust needs a new number and helps the trustee apply online. The account is closed, a new one is opened under the new EIN, and the trustee leaves with a slip of paper showing the number. At the next institution, the trustee presents the death certificate and the EIN and asks to liquidate the account. The institution refuses. It doesn't know what the trust's title is or should be, or what authority the successor trustee has. After several attempts, the trustee hires an attorney to prepare the documents that would have prevented the delay in the first place.

    • Same facts, wrong date. The attorney reviews the teller's paperwork and finds that the application listed the date the trust was signed, years ago, as the date it was funded. For a trust that becomes irrevocable at death, the right date is generally the date of death, when the trust first needed its own number. A wrong date can produce IRS letters demanding Form 1041 returns for every year back to that date.

The letters reflect a matching problem from a bad application. They do not mean every trust must file from the day it was signed. The attorney offers to help correct the record now, before the letters arrive, rather than answer them later.

    • Same facts, no copy. This time the teller applied online and printed nothing. The attorney can't tell what was entered and is reluctant to rely on a number that may cause loss later. Applying for a second number is not the answer. The IRS does not cancel EINs, and a trust should have only one. Instead, the trustee calls the IRS Business & Specialty Tax Line (800-829-4933) and asks for a 147C letter. The letter confirms the number and what the IRS has on file, and the trustee and attorney correct anything that is wrong.  

    • The decedent as responsible party. The teller names the deceased grantor as the responsible party, because the grantor created the trust. Form SS-4 still describes the responsible party for a trust as the grantor, owner, or trustor, and for an estate as the fiduciary. After the grantor is dead, though, the person who controls the trust is the successor trustee, and that trustee's number belongs on the application. Naming the decedent sends the mail to a dead person at an address the trustee is about to sell. Here the trust also received the decedent's IRA, which made the trust's income taxable. No one told the trustee a Form 1041 was due, and the IRS letters went unread at the old house. By the time the trustee learned of the return, the trust's assets had been distributed. A fiduciary who distributes assets before paying federal taxes can be personally liable. The trustee paid the tax, penalties, and interest from personal funds.

    • The beneficiary who was also trustee. An insurance agent helps a successor trustee fill out a life insurance claim form, apply online for an EIN, and open a money market account for the proceeds. The trustee is also the trust's only beneficiary and receives means-tested benefits, such as SSI and Medicaid. The trust was drafted as a third-party special-needs trust to protect those benefits. A beneficiary who is also sole trustee can lose the protection the trust was written to give, and a distribution can count as income in the month it is paid. Some states, and some benefit programs, are stricter than others. Here the trustee needed advice before filing the claim. Resigning as trustee before the money landed was the point of the trust's design. No one told him, and the beneficiary lost benefits, including health coverage. The EIN wasn't the cause. The lack of legal advice was.

    • Fourteen years of letters. A successor trustee applies online and administers the trust. The application lists the decedent as responsible party, the decedent's home as the mailing address, and the wrong start date. The IRS sends letters demanding Form 1041 returns for fourteen tax years, all to the decedent's home, which the trustee has already sold. Eventually a revenue agent calls. With the trust's assets long distributed, the trustee pays an attorney and an accountant from her own funds to resolve the matter. The returns were never really owed for those years; the trouble came from a bad application and mail that no one received.

    • The wrong digits. A family friend helps the trustee get an EIN but writes the number down wrong. Neither notices. The IRS contacts the trust when a return is filed under the wrong number, and an accountant is hired to sort it out. A 147C letter would have caught the error in minutes.

Where the Trust’s EIN Application Goes Wrong

Item on Form SS-4	Common mistake	What to enter instead	What can happen
Legal name (line 1)	A shorthand name that doesn’t match the trust document	The trust’s exact name and date, matching the certification of trust	Institutions can’t match the number to the account title
Mailing address (lines 4a–4b)	The decedent’s home	The successor trustee’s address, or the attorney’s or accountant’s office	IRS letters go to a house that is about to be sold, and no one reads them
Responsible party (lines 7a–7b)	The deceased grantor	The successor trustee, who now controls the trust	The IRS links the trust to a dead person; mismatches and notices follow
Type of entity (line 9a)	“Estate” checked for a trust, or a trust number used for a probate estate	“Trust” for the trust; a separate EIN for any probate estate	Returns and notices are filed under the wrong kind of taxpayer
Date funded (line 11)	The date the trust was signed or first funded, years ago	Generally the date of death, when the trust first needed its own EIN	Letters can demand Form 1041 returns for every year back to that date
Closing month (line 12)	A fiscal year picked without a § 645 election	December, unless the trust will make a § 645 election to be taxed with the estate	Returns filed on the wrong schedule; a planning opportunity missed
Third-party designee	A helper applies with no written authority and keeps no copy	An authorized designee, a signed authorization, and a saved copy of the application	No one can later show what was entered or fix it quickly

Line numbers refer to the current Form SS-4. The IRS revises the form from time to time, so check the current instructions before applying.

If You Already Have an EIN

• Confirm what the IRS has. Call the IRS Business & Specialty Tax Line at 800-829-4933 and ask for a 147C letter. Check the trust's name, the mailing address, and the start date.

• Answer every notice. If letters arrive demanding returns for years before the death, respond in writing. Explain the date of death and the date the trust first needed its own number. Ignoring the letters lets the problem grow.

• Report changes on Form 8822-B. Use Form 8822-B to report a new mailing address or a new responsible party, such as a change of trustee. A change of responsible party must be reported within 60 days. Form 8822-B does not, by itself, fix a bad original application.

• Keep the paper. Save the IRS confirmation notice and a copy of the application with the trust's records.

A Word to Helpful Professionals

Tellers, bankers, insurance agents, brokers, financial planners, and friends often help with this application in good faith. IRS procedures require a third party who applies on someone else's behalf to be authorized by that person. When the helper skips that step or keeps no copy, a simple typo or online glitch can take weeks to untangle. Fixing an online mistake can take longer than getting the number right the first time.

Helpers should also know that they may be liable for an application completed incorrectly, and that their professional insurance may not cover the loss. For non-lawyers, advising a trustee on these choices may amount to the unauthorized practice of law or go beyond the scope of their license.

Bottom Line

The EIN application is free, and a careful trustee can complete it. But a handful of entries decide where the IRS sends its mail and which years it expects returns: the start date, the mailing address, the responsible party, the type of entity, and the tax year. Other decisions travel with it, such as the § 645 election, Form 56, a joint trust's first-death split, and the certification of trust institutions will ask for. That is where an attorney or accountant earns the fee. A few hours of professional help at the start costs far less than years of IRS letters, a frozen account, or a trustee paying the trust's taxes out of pocket.

Who Was Isolating Whom? A Michigan Will and Guardianship Contest and the Two Faces of Family Conflict

In April 2016, an 88-year-old Michigan man named Brownie Kachar stood in his kitchen holding a barbecue fork. His son Stanley and the home-care nurses had been discussing his care without him. Brownie was angry. He insisted he should be making decisions about his own care. The argument escalated. Brownie felt threatened, and he picked up the fork “to defend himself.”

Daniel drove his father to the hospital that day. At the hospital afterward, a doctor told the family that Brownie could go home with round-the-clock nursing or go to a rehabilitation facility. The choice, the doctor said, was up to him. The family took a vote in the room. Brownie, his son Daniel, and his daughter Karen voted for home. Stanley and Brownie’s brother voted for the facility. As Daniel later recalled, Brownie reminded everyone, “this is a democracy, it is a majority.”  It didn’t go that way. Stanley filed an emergency guardianship petition, and Brownie went to the facility.  

Three months later, Brownie signed a new will. It left his real estate and the rest of the estate to Daniel and Karen and disinherited Stanley and his other son, Nicholas. Six years after that, Brownie died. Stanley claimed the new will was the product of undue influence. In In re Estate of Kachar, (Mich. Ct. App. Sept. 8, 2026) (unpublished), the Michigan Court of Appeals upheld the will. The legal holding is ordinary. The opinion binds no one. What makes the case worth studying is that it can be read two ways. 

Each side told a believable story about the other side isolating Brownie. That is the same pattern we described in "Isolation Through Manufactured Conflict": a crisis, a rupture, silence, then new papers. The sequence is a disguise. It looks identical from the outside whether the parent has been captured or is taking his name back. This article is about how to tell those stories apart, and how planning could have kept the family out of court.

The Plan That Put Everything in One Pair of Hands

In 2002, Brownie signed a will that divided his real estate among his three sons and the rest of the estate among all four children. He named Stanley as executor. The same day, he named Stanley as his health care agent and his financial agent under durable powers of attorney.  That was a common plan, and a reasonable one at the time. It was also brittle. Every lever sat in one pair of hands. When Brownie’s anger turned on Stanley, there was no one else with authority to turn to. The fight over Brownie’s care became a fight over Stanley’s power.

The Spring of 2016: The Fight Over Going Home

In November 2015, Brownie suffered a traumatic brain injury in a head-on collision. He was in a coma for a time. Testing in January 2016 found real deficits: trouble with memory, planning, numbers, and impulsivity. He couldn’t live on his own without help.

Stanley managed his care. By all accounts, the family worked together at first. Then came the kitchen argument, the vote, the guardianship petition, and the facility. Brownie wanted out. His lawyer, Peter Fales, drove an hour and a quarter to visit him and found that he “emphatically wanted to get out.” Brownie was furious with Stanley. Stanley didn’t visit him at the facility. The family stopped speaking to each other.

In late May, Brownie went to court himself and revoked Stanley’s health care power of attorney. The court appointed a neutral guardian. In July, clinical psychologist Peter Lichtenberg evaluated him. On August 1, the court replaced the neutral guardian with a limited co-guardianship. Daniel and Karen got authority to pay bills and make medical and placement decisions, and nothing more. That same day, Brownie went home

.Also that same day, Daniel dropped Brownie off at Fales’s office to talk about a new will. Two days later, Brownie signed it.

Two Stories, Both Plausible

Stanley’s story was that his siblings captured their father. The record gave him material:

• Daniel and Karen were Brownie’s guardians when he signed the will. They benefited from it.
• Daniel drove Brownie to the lawyer’s office.
• The lawyer emailed Daniel and Karen about Brownie’s plan to change his will, asked them for a copy of the old will, and scheduled the signing through them.
• Daniel and Karen paid the psychologist and the lawyer’s fee, and they held the original will afterward.
• Daniel was present for the entire competency evaluation.
• Daniel changed the locks on Brownie’s post office box and took over his mail.
• Karen asked the care manager to stop talking to Stanley.
• A later medical record noted, “Daughter states only Dan and herself should see patient.” Karen testified this was because Nicholas was encouraging him to drive.
• The care manager testified that Brownie was “possibly” under Daniel and Karen’s control.
• When a permanent guardianship was later being drafted, Karen wrote that she wanted the psychologist’s evaluation in the record “so [Stanley] has no leg to stand on in the future.”
• Stanley and Nicholas testified that Daniel and Karen disparaged Stanley to their father.

Daniel and Karen’s story was that Stanley walked away, and their father made his own choice. The record gave them material too:

• Stanley overrode his father’s wish to go home, had him admitted to a facility over his objection, and soon thereafter stopped visiting.
• On the way to the hospital after the kitchen argument, Brownie asked Daniel to take him to his lawyer’s office. The office was closed. That was before Daniel or Karen had any authority at all.
• Brownie told the lawyer he wanted a new will in a conversation Daniel and Karen weren’t part of.
• He met with the lawyer at the office without them.
• Neither was present when he signed. Neither saw the will beforehand.
• Everyone agreed Brownie was “extremely strong-willed.” His nurses later took him to the casino.
• The psychologist wrote that Stanley “got greedy for control” and hadn’t visited since the argument, in Brownie’s own words.

Both stories are true in part. That is often how these cases look.  

Hold those two files up against the markers in the isolation article — timeline, whose words, seen alone, instruments moving toward the gatekeeper — and the file will not sit still. The shift after a crash looks manufactured. The fork, the vote, and the facility are Brownie’s own sentences. Daniel driving him to the lawyer looks like chaperoning. Fales meeting him alone, twice, and keeping the beneficiaries out of the signing room cuts the other way. Documents moving toward the new guardians within two days of their appointment looks like the last stage of the pattern. A father who could still explain why he was angry, in detail, when no one else was talking for him, looks like estrangement he chose. The method works as a disguise because the sequence does not tell you which column you are in. The voice in the room does.

How the Court Decided

Michigan presumes undue influence when a fiduciary benefits from a transaction and had the opportunity to influence it. A guardian is a fiduciary. So the presumption applied, and Daniel and Karen had to produce evidence to rebut it. The burden of proving undue influence stayed with Stanley.

The probate court found the presumption rebutted, and the Court of Appeals affirmed. Its reasons are the useful part:

• Brownie started it. His first move toward a new will came before Daniel and Karen had any authority, when he asked to be driven to his lawyer’s office.

• He met with the lawyer on his own, twice. The lawyer’s own email showed a conversation about the will that Daniel and Karen learned about afterward.

• Capacity was confirmed days before signing. Lichtenberg wrote, “I have no doubts that he is capable of making a new will. His decision making abilities are a strength.”

• The beneficiaries stayed away: They weren’t present at the signing and never saw the draft.

• His reasons were his own. Brownie was angry about being put in the facility against his will, about the vote, and about a $50,000 loan he believed Stanley never repaid.

• No bargain. Nothing showed Daniel and Karen promised to take him home if he changed his will. Until August 1 they had no power to send him home. By the time they did, he was already there.

The court acknowledged that Brownie was at times delusional, paranoid, and volatile after his injury. It still found that his decision to disinherit Stanley reflected specific grievances he formed himself.

One detail deserves attention. The lawyer investigated the $50,000 loan and found no record of it. Brownie may well have been wrong about it. It didn’t matter. Under Michigan law, as under Ohio law, a competent person may leave his property unfairly, unwisely, or for reasons his family thinks are mistaken. The question is whether the will is his. Whether it is fair is a different question.

Lessons for Families and Planners

    • Exclusion breeds agitation.  The barbecue fork wasn’t random. Brownie had a brain injury, and he was being discussed as though he wasn’t in the room. People with cognitive injuries often cannot follow the conversation, but they can still feel dismissed. That feeling drives agitation, and agitation gets read as proof that the person can’t participate. It becomes a cycle. An observation-first approach to care starts by including the person in decisions about his own life as far as he is able. Brownie’s plan fell apart over the question of where he would live. That is the central question of aging in place.

    • Don’t put every role in one person.  One child as executor, health care agent, and financial agent is efficient until that child becomes the one the parent is angry with. Separate the roles. Name a health care agent from one part of the family and a financial agent from another. Add a successor who is already informed. When a relationship breaks, the plan should still work.

   • Capacity depends on the decision.  The same psychologist found that Brownie couldn’t manage his finances or decide what level of care he needed. He also found that Brownie could decide where to live and who his guardian should be, and that he had the capacity to make a will. The court said it directly: a person can be under guardianship and still have testamentary capacity. Families often assume otherwise. They shouldn’t.

  • Process won the case, and process nearly lost it.  The lawyer did the essentials right. He listened to his client alone, obtained a capacity opinion before signing, kept the beneficiaries out of the room, and didn’t show them the will. Those facts carried the day.  He also did several things that gave Stanley his case:

That last gap is notable, because Lichtenberg is a leading researcher on exactly that question. His Financial Decision Screening Scale, the tool we pointed to in the isolation article, was designed to look for influence, not only for knowledge of assets.

Three months after the will, Fales prepared the petition to make Daniel and Karen permanent co-guardians. Stanley argued that the petition listed Daniel as petitioner and Fales as his attorney. Fales testified that he was carrying out Brownie’s wish to have his son appointed. The court accepted that Fales represented Brownie alone, while noting that he “walked the line.” The November petition is not evidence of how the August will was procured. It is evidence of how easily the lawyer’s file can be made to look like the children’s file.

In Ohio, the Rules of Professional Conduct on confidentiality (Rule 1.6), conflicts (Rule 1.7), third-party payment (Rule 1.8(f)), and clients with diminished capacity (Rule 1.14) all point the same way. Communicate with the client, even when that is harder. Keep the beneficiaries away from the process, including the scheduling and the fee. Ask the evaluator to address undue influence, not just capacity.

    • Plan for the dispute while the person can still speak.  Ohio offers a tool Michigan families didn’t use here.  Under Ohio Rev. Code § 5817.02, a person can ask the probate court to declare a will valid during his lifetime. Only the testator can file. A person under guardianship would need the capacity to bring the case himself, and the court would weigh his situation carefully. But when a family fight is already underway and a new will changes everything, it is worth considering. Updating a nomination of guardian as relationships change is the other lesson. Brownie’s 2002 documents still pointed to Stanley after he no longer trusted him, and undoing them took a court fight.

    • A no-contest clause wouldn’t have helped.  Brownie lived six more years after signing his will, and the court fight lasted four years after his death.  Stanley received nothing under the 2016 will. A clause can’t take anything from someone who was left nothing. Deterrence requires something at stake.

    • Record the fight while it is happening. If you are the child who is being cut out, the time to record isolation, missed visits, driving bans, and who is scheduling the lawyer is during the guardianship, not after the funeral. A presumption gets you past a motion. It does not win the trial.

    • Guardianship makes the guardian the villain:  A year after the will, Brownie accused Daniel and Karen of “bullying” him. They had stopped him from driving, as his doctors and the court required. Karen once had to call the police and an ambulance to get him to a blood test. She eventually resigned. Whoever holds authority over an unhappy person tends to become the target of his anger. Stanley learned that in the spring of 2016. Daniel and Karen learned it in 2017. The limited guardianship left Brownie in charge of his own money and much of his life. That helped. The best plan still avoids guardianship where it can.

The Real Question

It’s tempting to read Kachar as a story about which child loved their father more. That question can’t be answered, and the law doesn’t ask it. The law asks whether the will reflects the mind of the person who signed it.

Brownie Kachar was injured, angry, sometimes wrong about the facts, and very much himself. He wanted to go home. He wanted a say in his own care. When he didn’t get it, he changed his will. Some people will think that was unfair to Stanley. The court’s answer was that it was Brownie’s decision to make.

Good planning can’t prevent a family from fracturing. It can, however, make sure that when it does, the person at the center still has a voice, and that the record shows it. 

Good planning will not make a family kind. It will, however, make it harder for the next emergency petition to become the last estate plan.