Avoiding Hard Feelings in Your Estate Plan
If you’ve ever read a will or trust agreement, you know that it’s a fairly cold, legal document. Yet, this document is the last bit of communication you will have with your family. And, it comes to your family at a highly charged emotional time in their lives. As a result, a slight or a perceived insult can become a major issue.
Lawyers who draft these documents are primarily concerned with their legal effect. If they succeed in transferring the property to the intended people, they have done their job. But that doesn’t mean that the document was a success from the client’s perspective. A document that distributes their belongings, but leaves a permanent rift in the family is probably not what they want.
An unnecessary family squabble can have adverse legal consequences as well. Relatives who are angry are more likely to contest the will. Fights over fees and division of property can be made much more expensive when the family is fighting.
Your wishes are the most important thing in a will or trust. If you want to leave property to one person and not another – that is perfectly acceptable. And, there are some people that will not be happy under any set of circumstances. The goal of an estate plan should not be to please everybody. It is, however, a good idea to try to avoid unnecessary or unintended animosity.
Here are a few things you can do to create a thoughtful estate plan:
Don’t use your estate as a threat during your life
At some point, you’ve probably heard somebody say “She’s threatening to take me out of the will.” For some people, this is a routine threat. It is never a good idea to make this threat. If you do not want to leave property to someone – then don’t. If you do – then do. But, you don’t want to surround yourself by people who are being nice to you out of fear that you will leave them out of your estate plan. Making the threats leads to lasting family fights.
Don’t use your estate to say something you couldn’t say during your life
Joe is angry at Jane for an affair she had 10 years ago. He decided to stay with her, but has never really gotten over it. Unbeknownst to Jane, Joe drafts a trust leaving his money to their children but naming a longtime family friend as trustee instead of Jane. It is his right, of course, but the hurt feelings create a permanent rift between Jane, her children and the family friend. The result hurts Jane, but it also hurts the kids and the friend. Not exactly what Joe wanted.
Predict the conflicts and plan for them
It is not all that difficult to predict the potential conflicts. Two daughters have a good relationship, but they also have strong sibling rivalry. They have both always loved mom’s silver tea set, and each has privately expressed to mom that they hope she will leave it to them. You can bet that leaving it to one is going to be hurtful to the other. Sometimes you can avoid these things by discussing the issue while you are still alive. Perhaps there is something else of importance that can go to the other daughter. Perhaps simply telling them that you love them equally and want to come up with something fair – is enough. Remember that it is not usually about the tea set – it is about your feelings toward them. If it really is about the tea set – don’t give it to either one of them!
Think carefully about bequests with “strings attached”
People love the idea of maintaining control after death. In some situations this is appropriate. It is common for bequests to children to be held in trust until they turn 18, or 21. But, sometimes the “strings” you attach to a bequest can be hurtful. Jimmy is 22 and a star student at a top university. He has always made good decisions. Tommy, is 18 and a really smart kid. Though smart, he is sometimes impulsive and not always as disciplined as he could be. Dad drafts a will that leaves 25% of his estate outright to Jimmy. He leaves an equal amount to Tommy, provided that he completes college within 5 years and then the money goes into a trust for his benefit. It is an understandable impulse, but what message does this send to Tommy? Does it say “I trust you to make the right decisions?” We all know that there are instances where it is necessary to have some strings attached, but you should think very carefully about it.
Consider preparing an ethical will
In the last few years, “ethical wills” have become more popular, but actually the idea is not new. There are examples of the use of ethical wills going back to biblical times. In recent years, they have commonly been used to leave a message for friends and family, pass down advice from one generation to the next or to share cultural values. They are obviously not drawn up by the lawyer, and can take any form that the maker wishes. They can be tremendously helpful because they allow people to say something meaningful to their family. You can think of the will as taking care of the business – and the ethical will as taking care of the emotional aspects of your death.
Taking a few moments to consider the message that your estate will send, could be the most important aspect of your estate planning.
Stotis & Baird Chartered attorneys represent individuals in Evanston, Skokie, Wilmette, Glenview Lincolnwood and throughout the Chicago area. Feel free contact us for a free consultation. Our practice includes estate planning, guardianship, probate, elder law and litigation. Visit the “resources” section of our website for other articles on estate planning and elder law.