By attorney Patti Spencer, Special to THELAW.TV
Brother against brother, father against son — are we talking about the Civil War? No — it's a fight over an estate — some of the most bitter, destructive fighting you can ever see. From diamond rings to second homes, greed is fueled. Don't let it happen to your family.
The fact that children have no "right" of inheritance is a hard concept for many to swallow. We live in a society where the entitlement philosophy has a firm grip. People feel entitled to everything from free health care and free child care, to entitlement of Mom's and Dad's estate. The law of an inverse relationship applies: The person who has the least to do with the deceased imagines he has the biggest entitlement to the estate.
I have very few clients who expect their children to fight over the estate. Most parents assume that children will exercise good will and settle things amicably. Maybe they will, but my advice is never assume.
Here's what to do to avoid a family fight over your estate:
1. Tell your family what your estate plan is, and why. Your kids and other family members are not mind readers. Have a family meeting. Smoke out and solve problems in advance. Communication is the best gift you can give to your family.
2. Never make one of your children dependent on the good will of another child. Don't expect a child to take care of his sibling or "do the right thing," whatever you think that may be. Never put property in joint names with one child expecting that child to share with his siblings. Never give a child's share to a sibling to "protect" it from a child's spouse or creditors. If lawyers have to get involved, the relationship among the children is never the same.
3. Don't assume that equal treatment of all your children will solve all disputes. Equal shares may not be fair. What about the kid you "loaned" money to buy a house who never paid it back? What about the son who poured a lifetime of sweat equity into the family business? What about the daughter who took care of you for the last 10 years? Aren't they entitled to something extra? (From the son's point of view, there would be no big estate without his work. From the caregiver daughter's point of view, she gave years of her life to caring for parents who were difficult, demanding, and nearly drove her crazy. From the siblings' point of view, he earned his money already and she lived there for years with no rent, sponging off of Mom and Dad. These two points of view are never going to meet.)
4. Don't assume that not treating the children equally will be understood. One has greater needs? Explain. One daughter is an unemployed single mom with small children. The other kids are well-employed professionals. Do your really think they will understand if she gets more? Talk to them.
5. Make sure you pay attention to who gets your personal possessions. A recent study sponsored by Allianz Life Insurance found that when it comes to inheritance, personal items are five times more likely to create family conflict than money. This is no surprise to estate lawyers who know that the bitterest fights are over pianos and cookie jars. Arguments over these things are over memories and emotions. It is not about monetary value, and the legal fees for the dispute will far exceed the value of the item.
Ask your children what they want. Devise a method for dividing possessions up. Have you made promises to people about what they will receive? Make sure you fulfill the promises.
6. If you get married again, make a pre-nuptial agreement. No ifs, ands, or buts. There can be two sets of heirs – his and hers from prior marriages. Don't leave anything to unwritten "understandings." Even with the best intentions, these situations can erupt into painful arguments and court battles. You think it's unromantic to have a pre-nuptial? How unromantic is it to destroy the relationship among your family members?
7. Be very careful about designating only one of the children as executor. This will often be viewed as favoritism. At least talk to them about it. Yes, it's a bit cumbersome to have more than one executor — but the extra effort may be worth it if it saves a family relationship.
8. Don't try to "do it yourself." Poorly written documents with ambiguities and mistakes are sure to cause trouble. Seek competent counsel.
9. If one of your children has special needs — make a plan. Don't expect his or her siblings to pick up your burden unless they have agreed to. Investigate the options and make sure the finances are dealt with appropriately.
10. You plan on making significant gifts to charity? Great. But tell the kids. If you do it secretly, they will feel betrayed, and you will have lost the opportunity to explain your legacy to them.
And there you have it, folks. Protect your family from the potential greed mongers.
The author, Patti Spencer, is a Lancaster, Pa., trusts, estates and tax attorney at Spencer Law Firm LLC.