Resilient Estate Planning- The Critical Difference a Trust Makes

Experienced attorneys know that the design of an estate plan matters more than the specific instructions it contains, especially when it comes to resilience.

Most people want "peace of mind" from their estate planning. They want confidence that their wishes will be followed, that there won’t be fights, contests, or expensive legal challenges, and that their instructions are secure and inviolate. Unfortunately, that’s often not the reality with traditional estate plans. Because wills, powers of attorney, and other estate planning documents sit unused for years or decades before they are needed, they are easy targets for disagreement once the person who created them is no longer able to confirm their intentions.  Simply, they are not resilient plans.

The “Set It and Forget It” Problem

A traditional estate plan built around a simple will and powers of attorney has an inherent fundamental weakness: the documents are created once and then put away. They sit in a drawer, folder, envelope, or safe deposit box for years, sometimes decades,  gathering dust until they’re needed. 

By the time they’re pulled out, the person who created them is often at their most vulnerable, either incapacitated or deceased. At that point, questions inevitably arise: 

• Do these documents still reflect their current wishes? 
• Have circumstances or laws changed that render the decisions obsolete or inappropriate? 
• Were later documents created that were never found, inadvertently lost, or destroyed? 

Because the documents lay dormant for so long, they are relatively easy to dismiss or challenge.  In fact, the ease with which they can be contested often invites and encourages disputes.  

The Hidden Weakness of Beneficiary Designations, TODs, and PODs

Many people believe they’ve addressed their estate planning needs by simply using beneficiary, Transfer-on-Death (TOD), or Payable-on-Death (POD) designations on accounts, vehicles, and real estate. These cheap and easy devices are marketed to avoid probate. Sadly, they don't always work, are limited as real planning tools, and have serious disadvantages that are rarely discussed, since they are typically not accompanied by careful legal consideration and advice.  Unfortunately, these simple tools often create more problems than they solve. To view my video, "Five Rock Solid Reasons to Avoid Direct Transfer Designations- TODs, PODs, and Beneficiary Designations," go here.

Worse, though, they are more fragile and even more easily contested than traditional wills and powers of attorney.  Unlike with wills and powers of attorney, there is no legally prescribed signing ceremony.  They aren't drafted by an attorney. These designations are typically filled out on a generic form provided by the bank, insurance company, brokerage, or title agency. You sign it, sometimes in front of a teller or customer service representative, sometimes at home after receiving it in the mail or downloading it online. Your signature is rarely notarized or authenticated, like with other estate planning documents. The financial institution keeps the original, hopefully, and you typically receive no formal copy or documented proof of the transaction. 

Years later, when the form is needed, hopefully it can be found.  Even if it is found, it can be difficult to prove it was actually signed by you.  Often, the person who helped, the teller, banker, or staff member, is unknown. Financial institutions frequently lose these forms, or the forms become so faded that they’re barely legible. Because these documents sit untouched for decades, they carry the same vulnerabilities as old wills or powers of attorney; they do not prove that they reflect your current intentions.

The Secret Power of a Trust: Ratification

A properly funded revocable trust works in a completely different way.  The moment you sign your revocable trust, you begin the process of funding it, retitling accounts, deeds, and other assets into the name of the trust, changing beneficiaries, and reorienting insurance policies- for example, your homeowner and automobile insurance policies are changed to add the trust as an additional named insured. Once funded, you don’t put the trust away. You use it-- every day.  Every time you write a check from your trust account, pay a bill online from your trust account, buy a new asset titled to you as trustee, renew your home and/or automobile insurance, receive a statement addressed to you as trustee, file taxes, or update a beneficiary designation to flow through your trust, you are actively ratifying that trust. You are confirming, day after day, year after year, that you have adopted the trust, have confidence in it, and that it reflects your wishes.

Equally important is your review.  If you have an active drafting attorney partnered with other professionals representing you, your plan is reviewed, and that review is documented.  Whether it is every year, every other year, or just "once in a blue moon," your lawyer, insurance agent, financial planner, or broker is documenting your review, consideration, and reconsideration of your plan. Documented review fortifies and protects the constructed resilience.  

The trust is the castle, and your reviewing agents are the knights standing guard, protecting your plan, your assets, your property, your choice of trusted decision-makers, and your expressed decisions.     

Why Resilience Matters When It CountsWhen incapacity or death eventually occurs, the difference between plans deploying an trust and those that do not is dramatic:

• With a Will, PODs, TODs, or beneficiary designations, someone must pull out documents that may be 10, 20, or even 30 years old. Their validity and relevance are immediately open to question.
• With a revocable trust, the trust has been actively used and affirmed right up until the moment of need. It carries the powerful weight of continuous, daily confirmation.

This daily use creates real resilience. It becomes much harder for anyone to successfully argue that “those weren’t really Mom’s final wishes” when the trust was being actively used and confirmed until the day she became incapacitated or passed away.

The Real Difference: Resilience vs. Fragility

Many people believe a trust is more secure because it contains a "no-contest" clause. The truth is, wills also contain no-contest clauses. The real difference isn’t the presence of a no-contest provision; it’s the constructed resilience. One plan sits dormant, gathering dust for decades, becoming fragile with each passing day and year, and therefore more susceptible to challenge or dismissal. The other is actively used and continuously reaffirmed, growing stronger over time, making it far more credible and much harder to contest or ignore when it matters most.

A will-based plan forces families to rely on old, untouched documents. A revocable trust has been living and breathing right up until the moment of imperative need.

The Bottom Line

A will-based plan with beneficiary designations is a collection of documents that waits passively for the future.  A properly funded revocable trust is a living system that travels with you through time, constantly reaffirming itself.

If you want your estate plan to have real strength and credibility when you need it most, especially in the face of changing laws, family conflicts, or contested capacity,  a revocable trust offers a level of resilience that a Will, TODs, PODs, and beneficiary designations simply cannot match. 

The most resilient estate plans aren’t the ones that are well-written. They’re the ones designed to be used, and actually used, prior to a critical need, tragedy, or change in circumstances. 

When Family Ties Turn Tangled: Lessons from Tharrett v. Everett on Trusts, Troublesome Beneficiaries, and the Power of Proactive Planning

In the worlds of estate and trust planning, aging-in-place planning, and business succession planning, a well-crafted revocable living trust isn't just a tool for avoiding probate, it's a shield against very real risks that can derail your legacy. Among these, and perhaps the most profound and intimate risk, is family discord.  The recent Kansas Supreme Court decision in Tharrett v. Everett, No. 125,999 (Kan. Aug. 8, 2025) , drives this home with a cautionary tale of sibling rivalry, delayed distributions, and mounting legal fees. Here, a beneficiary's persistent objections turned a straightforward trust wind-up into a multi-year battle, costing the estate, and ultimately the disruptor, thousands in attorney fees. For seniors and their families, this case underscores why trusts must be structured to deter "cake-and-eat-it-too" tactics from beneficiaries and to provide practical strategies for handling those who simply want to stir the pot. Let's break down the case, explore its implications, and chart a smarter path forward.

The Case: A Trust in Turmoil
Roxine Poznich, like many aging individuals, established a revocable living trust to efficiently distribute her assets to her five children upon her death in 2020. She named her daughter Sarah Tharrett as successor trustee, a common choice for its familiarity and cost-effectiveness. But family dynamics can upend even the best-laid plans. Roxine's son, David Everett, quickly challenged Sarah's role, filing a lawsuit in May 2021 to remove her as trustee. The suit was dismissed, but the damage was done: tensions simmered.
By October 2021, Sarah issued a final trust report and proposed distribution, which four siblings approved. David, however, objected, stalling the trust's closure and forcing Sarah to file a declaratory judgment action in June 2022 under Kansas statutes (K.S.A. 60-1701 et seq. and K.S.A. 58a-201(c)). The district court sided with Sarah: It approved the distribution, discharged her as trustee, ordered the payout of remaining funds, and, crucially, awarded Sarah $4,000 in attorney fees from David's share for the "extraordinary services" needed to defend the trust.
David cashed his distribution check but appealed anyway, arguing the judgment was void due to due process violations (e.g., inadequate notice and access to trust documents). The Kansas Court of Appeals dismissed the appeal in May 2024, ruling that by accepting the benefits, David had "acquiesced" to the judgment and couldn't now challenge it inconsistently. It also denied Sarah's request for appellate attorney fees.
The Supreme Court granted review and, in an August 2025 opinion, largely affirmed but with a pivotal reversal. It rejected David's void-judgment claim outright: due process issues don't void a ruling unless they strip personal jurisdiction entirely, and David's active participation (filings, motions, in-person appearances) belied any such argument. The Court upheld acquiescence as a jurisdictional bar; David couldn't accept the payout (the "cake") and still fight for more (eat it too). The court reversed, however, on fees, awarding Sarah an additional $11,320 in appellate attorney fees under Supreme Court Rule 7.07(b)(1) and K.S.A. 58a-1004. Why? Equity demanded it: David's "repeated meritless attempts to get more money" had unjustly burdened the trustee and trust, and courts retain jurisdiction over fee disputes even when the merits are off-limits.
As the Court noted, quoting Kansas trust law: "[i]n a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney fees, to any party, to be paid by another party or from the trust." This wasn't punitive (David's appeal wasn't deemed frivolous) but a fair allocation of costs to preserve the trust's integrity.The Takeaway: Trusts Serve as a Bulwark Against "Cake-and-Eat-It-Too" BeneficiariesWhat strategic angle should elder law planners take from Tharrett? Lean into trusts as proactive deterrents against beneficiaries who demand their inheritance while waging war on the process. In this case, David's acquiescence doctrine, rooted in Kansas precedent, served as a trapdoor: once he pocketed his share, the courthouse doors slammed shut on his appeals. This isn't unique to Kansas; similar rules apply in most states, preventing "inconsistent positions" that could "moot" challenges.
For aging clients, the message is clear: A revocable living trust, when properly drafted and funded, creates enforceable boundaries. Unlike probate, where courts micromanage distributions, trusts empower trustees to act decisively, distribute assets, seek court approval if needed, and surcharge objectors for bad-faith delays. Tharrett shows how this protects against "cake-and-eat-it-too" tactics.  Beneficiaries can't cherry-pick benefits while litigating the rest. Planners should emphasize in client consultations: "Your trust isn't just a distribution vehicle; it's a family peacekeeper, with teeth to enforce compliance."Handling Beneficiaries Who Just Want to Make Things DifficultEven the best families have outliers, those who object not from genuine grievance but to exert control or vent unresolved issues. Tharrett's David exemplifies this: his initial removal suit failed, yet he persisted, blocking closure for months and racking up fees. How do trustees (and planners) respond?

•Document Everything: From the outset, maintain meticulous records of communications, accountings, and approvals. Sarah's final report, approved by most siblings, isolated David's objections as outliers, strengthening her declaratory action.

•Invoke Statutory Tools Early: Under laws like K.S.A. 58a-1004 (mirrored in the Uniform Trust Code, adopted by 36 states), trustees can petition courts for instructions, distributions, and fee awards against unreasonable challengers. In Tharrett, this allowed surcharging David's share without depleting the whole trust.

•Leverage No-Contest Clauses: Draft trusts with in terrorem clauses that disincentivize frivolous challenges, e.g., forfeiture of a beneficiary's share for groundless contests. While Kansas enforces these judiciously, they deter most would-be troublemakers.  These can be expanded to include meritless or retaliatory legal actions that frustrate efficient trust administration.  

•Mediation Mandates: Build in requirements for mandatory and binding alternative dispute resolution before litigation. This cools tempers and often resolves issues without court, preserving relationships (and funds) for aging-in-place needs like in-home care.

•Appoint Neutral Successors: For high-conflict families, name a professional trustee (e.g., bank or trust company) as successor, reducing accusations of bias.

•Peace and Tranquility Clauses:  Consider including a provision that permits a trustee to surcharge a beneficiary who causes unreasonable costs or delays, or takes actions that unnecessarily increase the cost of administration.  Such a provision might deter a recalcitrant beneficiary, but if unsuccessful, it ensures that the resulting costs and expenses are borne equitably by the beneficiary who caused them. 

The case reminds us: when breach of fiduciary duty isn't evident (as here, with no proof of wrongdoing by Sarah), trustees should push for closure. Beneficiaries must accept distributions and final reports or face consequences.Why the Attorney Fees Ruling is a Game-Changer for ClosureThe Supreme Court's fee reversal is gold for elder law advocacy: it positions costs as a "reality check" for reluctant beneficiaries. In Tharrett, the $11,320 award, based on an attorney's affidavit and factors like reasonableness under Kansas Rule of Professional Conduct 1.5, wasn't about punishing David but equitably shifting the burden of his "meritless attempts." This aligns with the Court's view that trustees shouldn't bear personal costs for defending the settlor's intent.
For clients, highlight this as a reason to embrace finality.  "Accept your distribution and report because fighting it could cost you more than you gain." In low-stakes disputes (no clear breach), it encourages settlements, speeding assets to heirs for real needs. Planners can use Tharrett to illustrate that fees aren't optional; they're a trust's self-defense mechanism.Conclusion: Structure Your Trust to Safeguard Your LegacyTharrett v. Everett isn't just a win for trustees—it's a blueprint for efficient and effective trust administration. By deterring obstructive beneficiaries, enabling swift resolutions, and equitably allocating costs, revocable trusts ensure your assets support independence and  private administration, not costly public infighting. If family tensions loom, consult an elder law attorney now to fortify your plan with anti-litigation provisions. Don't let a David's delays dim your golden years—plan decisively, and let equity do the rest.
For the full opinion, see Tharrett v. Everett on Google Scholar.