Using Estate Planning to Prevent Family Conflict
“My kids all get along great and would never fight or argue about the disposition of my estate after I’m gone.”
This is a very familiar statement made by clients to their estate planning attorneys. Unfortunately, the reality is oftentimes very different from our perceptions and hopes. There is no question losing a parent is one of the most difficult, emotional, and stressful events in our lives. With heightened emotion and stress, we often react to situations differently than we would otherwise. During life, we are able to mediate and resolve many disputes among our children. Once we are gone, however, our position as mediator, matriarch, or patriarch is now empty.
Common situations that are frequently the source of conflict among children of a dying and/or deceased parent are:
- Making end-of-life decisions;
- Making burial and funeral arrangements;
- Attempting to divide up and distribute a parent’s assets and personal effects; and
- Serving as the personal representative and/or trustee.
Some conflicts are perhaps inevitable and unpreventable, but many can be avoided with planning. A carefully drafted and comprehensive estate plan can be an invaluable and very loving gift parents can give to their children.
Best Practices for Preventing Familial Conflict
Below are some suggestions about how to address and hopefully prevent, or at least minimize, conflict in the situations listed above:
- Communication – Perhaps the most important thing we can do is to communicate with all of our children how we want our end of life planning handled, whether we want to be cremated or embalmed, what type of funeral and burial services we prefer, and how we want our estate to be distributed. These can be difficult conversations to have, but they will almost always be of tremendous value to your children. Otherwise, your children may have varying answers to these questions after your death, which can lead to conflict.
- Advance Health Care Directive – Oftentimes one of the most important estate planning documents is an advance health care directives. Advanced healthcare directives appoint one or more people to make health care decisions for you if you are unable to make the decision yourself and provides instructions to your loved ones and physicians about end-of-life medical care and intervention. This can help adult children understand their roles during a health care crisis saving valuable time and effort for everyone.
- Burial and Funeral Arrangements – Making advance arrangements for your burial and funeral will provide your children with assurances that everything is being handled in the manner you want and will alleviate your children from having to make very difficult and emotional decisions.
- Personal Property List – One of the more frequent disputes among families is centered around the division and distribution of personal effects. Jewelry, artwork, tools, furniture, and collections frequently carry very significant sentimental value to loved ones. In New Mexico, an individual may prepare a list as an addendum to their will or trust, which directs the disposition of personal property to whomever they choose. Taking control of this disposition, rather than simply leaving it up to their children, unquestionably prevents (or at least minimizes) many arguments.
- Explanation of Appointments- In every estate plan, individuals or entities are named to serve as agent under powers of attorney, personal representative of wills, and/or trustee of a trust. If one child, to the exclusion of others, is chosen to serve in one or more of these capacities, it should be communicated with the other children in advance as to why a particular child was selected. Perhaps it is simply because the one chosen is the oldest, or perhaps he or she has specific skills or experience which are applicable. But letting your children know why can be extremely important. Without such communication, there can frequently be resentment toward the child who was selected to serve as power of attorney, personal representative, and/or trustee.
- Appointment of Corporate Fiduciaries – There is a common misconception that administration of an estate is very simple and should be completed within a short period of time. The reality, however, is the administration of an estate can, and oftentimes is, a very tedious and time-consuming job. As a result, the children who are not acting as the personal representative or trustee frequently become frustrated as to why the estate administration is not moving faster. Because of this, consideration should at least be given to the appointment of a corporate fiduciary to serve as personal representative and/or trustee. With a corporate fiduciary, your children can direct their frustration or anger toward the bank or trust company instead of their sibling(s) or other relatives. Lawyers, banks, and trust companies can serve as corporate fiduciaries. It is important to choose a reputable company or lawyer to serve as the corporate fiduciary with experience in administering estates.
On a personal note, one of the most important things in the world to me is family. As an estate planning attorney, I am always troubled and upset by families who begin fighting in the situations I have described above.
Sadly, I have encountered this with families I never believed would fight, and many of these disagreements turn into lifetime resentments. Hopefully, your children will always agree in these situations, but taking the relatively simple steps discussed above will provide some comfort and answers to your children, thus hopefully preventing conflict.
The attorneys at Pregenzer, Baysinger, Wideman & Sale are available to help you plan for these situations and prevent conflict in your family. To discuss your end-of-life planning, contact your estate planning attorney or get in touch with an attorney at PBWS today.