Four Steps to Avoid the ‘Land-Mines’ at Death

Professor Gary Bauer

Professor Gary Bauer

Professor Gary Bauer has been a member of the full-time faculty at WMU-Cooley Law School since 1998. He now teaches Estate Planning to third-year law students and a directed study class he created called Solo By Design. His blog, sololawyerbydesign.com, provides law students, recent solo practitioners, and seasoned professionals who wish to go solo, with information and resources to be successful in the legal business. This blog post was first published on October 8, 2015.

A True Story

Before my mother and father passed away, and when all 11 siblings and I were together (not a very common occurrence), at one point, we gathered in the living room of their house. My mom then sent one of my siblings into another room to retrieve a cardboard box. This box was not unlike many boxes in families of their generation. It was filled with photographs. You know the box! It has many photos in it. Some were in small albums. Some had negatives, some did not. And there were very old photos of all sizes and more recent photos. Several of my siblings sat over the box and passed photos to the ones of us featured in those photos and held up others that had significance for many of us.

We laughed, we cried, and we shared memories with one another. After we went through the photos, mom and dad invited us to take any of those photos that we wanted. We asked one of my brothers to be our archivist. He would take those photos that we wished to have duplicated and hold onto the rest.

box-915058_1280

Do you want fireworks?

After that process was complete, dad and mom asked us if there were any items that they possessed that we might like to have, particularly those of sentimental value. I left with a hat and a hand-plane that I associated with my dad and my other siblings chose other items as well.

My parents are both gone, but they always taught us to get along and to support one another. Harmony within our family was the norm. Even as children, we rarely had disputes. We learned to share and support one another as a result of our circumstances and great parenting. I really believe that, even in dysfunctional families, an event like this would set the stage for greater cooperation among family members at the death of a loved one. True, it won’t work for everyone, but it is one tool that a family can use to prevent battles over the tangible items left behind. They are frequently the source of disputes later on, as they are often viewed as tangible symbols of the love and affection that the decedent left behind. Siblings often struggle to wrest them from one another as symbolic of greater love and affection for one child over another.

As an estate planning attorney for over 20 years, I have seen it all. Too often, we hear about family members who no longer speak to one another. Frequently, this occurs after the distribution of an estate upon one of their loved one’s death. How do you avoid this? The truth is that there are some families that are destined to “explode” upon the death of one of the central figures in the family. And there is nothing you can do to prevent this.

At the same time, I often see planning that could have created an atmosphere of cooperation and harmony. But the planner failed to plan effectively because he or she failed to address the obvious tensions that often exist between siblings or step-parents and the surviving progeny of a decedent. My parents set the stage, in my story above, to promote harmony in our family.

I have a four-step program that you might wish to implement with all of your clients. Where you see dissonance in the family or merged family units, you may want to consider this approach.

  1. Gain a clear understanding of the dynamics in the family. Be aware of clients who do not wish to air their “dirty laundry” and speak poorly of their progeny. Of course, there are those who will willingly tell you about the problems associated with their children and, in particular, their “steps” issues which will abound. Allow them the freedom to tell the story of their family and their extended family. This takes time. But this step is critical as you prepare their estate plan. Help them avoid the “land-mines” buried beneath the tranquility masked by the apparent cohesion that exists as long as your client is alive. Cohesion just waiting to explode upon their death. This inquiry is a “value added” component of your practice. It will help distinguish you from online resources or the “discount” attorney down the street. Spend time allowing your client to vent and be curious. When they speak about their own extended family transfers of property at death, they will be giving you clues to the issues they foresee and wish to avoid.
  2. Help the client to choose an agent most appropriate to administer the estate. Is this a person who can muster the assets, maintain order, and at the same time, not alienate everyone in the process? This is a very difficult role to execute properly and is often where estate administration falls apart. If it is one of your children amongst many, is this the natural and accepted leader by the majority of the other siblings? Is it one of the step-children being put in charge? If so, is this someone who will be accepted and respected by the survivors? If not, it may be best to pick an “outsider” as your agent to neutralize potential feelings of disenfranchisement by some of the survivors. The cost, in the end, might be a bargain compared to the expenses of possible litigation.
  3. Encourage your clients to distribute their personal effects to experience the satisfaction of making gifts during their lifetime. For those things that they wish to retain until death, have them make a list and incorporate it by reference into their Will or Trust. Make sure they identify with clarity who is to receive that gift and the item with specificity. Incorporate language in your Will or Trust with three orders of priority. A. First, distribute my tangible property according to my express wishes. B. Second, for those items not expressly devised, distribute them as agreed amongst yourselves. C. Third, for those items that you cannot agree, I direct you to place your names in a hat with the first name drawn to have first choice, the second name drawn shall have second choice, and so forth until all the items have been chosen or no one wishes to choose another item. The rest shall be sold or given away. I saw this provision many years ago and felt it is one way to avoid litigation over the family Bible or some other item personal to the decedent.
  4. Consider an ethical Will or Trust. My father had a preamble in his Will which had words to this effect:

The things I leave below are not the gifts I leave you with the greatest value. The times we spent together, the memories we shared, my hopes and aspirations for your success and happiness in the future are those things of value. I love you all so very much and wish for you the very best that life can offer. I have appointed Bruce as my executor, and I ask that you assist him so that he is able to distribute my property expeditiously and without intervention.”

I believe many of the battles that ensue at the death of a loved one can be avoided with good counseling; this is the type of counseling you cannot get using on-line document generating software. As attorneys, we need to do a better job of explaining why our counsel has value. The end result, the document, is merely a great by-product of good counseling and it is not the most valuable component of our services.

 

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