BE NICE TO YOUR SISTER: Wills & Estates with difficult children

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Manage wills and estates for adult children

Lots of families have them: a sibling who can’t get it together, causes more than their share of family drama or constantly needs to be bailed out of trouble. Maybe it’s a step-sibling who feels slighted by Dad’s new wife, a brother who’s battled addiction or a sister with a sense of entitlement. Whatever the situation, the result is the same: the potential for conflict – both legal and emotional – when parents die without a detailed Will and estate plan.

Studies suggest that as many as 70% of parents haven’t had a serious conversation with their adult children about how their estate is to be divided when they die. When confusion is added to the grieving process, the actions of difficult adult children can cause families to fracture.

How can family lawyers best help their clients avoid family conflict after their death?

Encourage honesty

Many parents are reluctant to admit that they have a ‘difficult’ adult child. As a lawyer, combining detailed, neutral questioning with a bit of a ‘seen it all’ attitude can help parents feel more comfortable opening up about potential issues without feeling as though you’re going to judge them for having ‘failed’.

Provide a non-judgmental environment

Yes, the parents in this situation may be your clients, but you have an obligation to the beneficiaries and the Estate so avoid ‘taking sides’ when it comes to discussions about family tensions that may go back years. A lawyer who can facilitate a family meeting – and act as, or engage a non-emotional mediator to help everyone stay focused – can help the client craft a Will and estate plan that is clear, transparent and understood by everyone.

Addressing ‘blended family’ challenges

Blended families – where there are adult children from prior relationships — often have additional tensions. Of particular note is the need for detailed personal property disbursements, to avoid sister Nanette accusing step-brother Paul of taking piece of furniture that both believe rightly belongs in their biological family.

‘Fair’ doesn’t have to mean ‘equal’

A Will that says “Divide everything among  my 3 children equally” isn’t so much ‘fair’ as ‘a recipe for disaster’ because it generally means having to sell the family home, business or cottage so the proceeds can be split three ways – and at least one of your kids wanted to keep the cottage in the family but didn’t have enough cash to buy the others out.

A Will that acknowledges the adult child who wants to run the family business, the one who wants the cottage, and the one who will be happy with a cheque and the family albums will do a better job at protecting family unity – and, in fact, family assets – than one which seeks to ensure that everyone gets an equal share, down to the last penny.

Insist on detailed communication

In my experience, 90% of the problems involving difficult adult children happen because one or more beneficiaries were unaware of the contents of a Will and are taken by surprise when they discover that an inheritance or disbursement isn’t what they thought it would be. In many cases, they’re not upset about the bulk of the estate – it’s that their feelings get hurt when they discover that they are not inheriting Grandma Anne’s silverware or Great Uncle Bill’s prized fishing cap.

Encourage clients to speak to their adult children about their estate, before, during and after its preparation. The client who canvassed their children’s wishes will be better prepared to give instructions.  The more the kids know – about the Will, where it is, what’s in it, and who prepared it – the less likely the emotional (and legal) fallout. Moreover, it gives them time to address the issue of Great Uncle Bill’s fishing cap in advance, if they want to.

 This piece originally appeared in The Lawyer’s Daily

FROM ADVOCATE DAILY: Good estate plans involve open communication

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Communication is vital when preparing a will

From AdvocateDaily this week:

Having an open discussion with family members, beneficiaries and intended executors is an important part of preparing an estate plan in order to minimize conflict, reduce expenses and meet the testator’s intentions, Ottawa family law and estate lawyer Timothy N. Sullivan says in a recent Caregiving Matters podcast.

As Sullivan, principal of SullivanLaw, says in the interview, one of the main legal issues that families face when someone dies is trying to respect the deceased’s intentions.

“The family will have to go through a process of grieving, dealing with the funeral and the burial … The issue that they hand to lawyers at some point is ‘what now’. The ‘what now’ when it comes to the lawyer’s point of view is ‘where’s the will?’”

For testators, he recommends taking the time during the estate-planning process to communicate this information to family members, beneficiaries and executors.

To read the rest of the article, visit AdvocateDaily.

WILLS & ESTATES: Tips for disbursing household possessions

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Wills and estates household possessions

 

How to make it easier to organize and allocate household ‘stuff’ when a parent has died

When people think about being an executor of a will, they often focus on the administrative part: Making sure they know where the will is, meeting with the lawyer, contacting beneficiaries, ensuring the paperwork is completed and filed properly, etc.

But in fact for many people, the more time-consuming – and sometimes headache-inducing – part of the process is going through the family home and determining what should be done with all the stuff that a person accumulates in 75 or 80 years of life.

Even if your parents (because it’s usually the adult children of the deceased who are tasked with this) had recently downsized and don’t have a huge basement of childhood gear to wade through, chances are they’ve got several rooms’ worth of furniture, several cupboards’ worth of china and kitchen tools, and several boxes worth of artwork and knickknacks. Some of it is nice, some of it is serviceable, and some of it should go directly to Goodwill.

But how do you manage it so that (a) everyone who wants one can receive some kind of memento; (b) the estate is compensated fairly for any items of high value; and (c) the process doesn’t start some kind of family feud because Aunt Mabel didn’t get that vase she’s always said she wanted?

Here are some tips:

Communicate with beneficiaries promptly and clearly. While executors are supposed to give notice to beneficiaries in certain ways and at certain times, the reality is that additional phone calls or emails to beneficiaries, keeping them up to date on the progress of probate or disbursements or tracking down a long-lost beneficiary can prevent family resentment later.

Get an independent appraisal. Pay a local antique dealer (typically $500-$1000, depending on the amount of stuff) to give you high-level values for everything in the house, from that supposedly-fantastic artwork in the living room to the set of pots under the sink. Make it clear that the appraisal will not lead to the dealer actually handling any sales, which will help ensure the values are realistic.

Make the appraisal list available to beneficiaries or people like Aunt Mabel. If that vase was appraised at $1200, it may be more than a memento – it may be an asset, and therefore not something you can just let her have when she stops by to help you clean out the house. Showing her some paperwork from an expert helps ensure no one (including Aunt Mabel) takes it personally when you’re firm about not letting people casually remove things from the home.

Invite children, grandchildren and other relatives to choose one item first. One of my clients invited all the kids and close relatives to their deceased parents’ home a couple of weeks after the funeral, and asked each of them to write down the one item they wanted, and one alternate. (All items had been assigned a value by a local auction dealer.)

The amazing result was that everyone got the item they wanted, and no one went away upset. Everyone felt like they’d gotten the one ‘special item’ they wanted, and the rest of the items were distributed without sowing the seeds of a long-term family dispute.

Insist that higher-end items are purchased from the estate – not given away unilaterally. When Grandma or Grandpa dies, there’s often a late-model car automobile left in the garage, and a grandchild or two who could use a vehicle to get to school or work.  Unless there is specific direction in the will, assets like this should be sold by the estate and the proceeds shared among the beneficiaries as outlined in the will. Sure, the grandchild hoping for a free car might be a little disgruntled now, but that’s better than all the beneficiaries feeling ‘cheated’ later on.

Try to remember that it’s just ‘stuff’. Losing a close friend or family member sometimes makes everything seem like a much bigger deal than it really is, or than it would be if you weren’t in the middle of the grieving process. Whether or not you get your mother’s lamp or your father’s old fishing rod is less important than ensuring you and your family have the time and space to grieve without additional stress.

It’s Monday morning. Do you know where your will is?

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Preparing estate documents is one thing. Accessing them is another.

Last Monday morning I got a call from an old friend in Vancouver. “My mother is in the hospital and they don’t expect her to regain consciousness,” he said. “I need to find her will and the Power of Attorney paperwork I did with her lawyer out here last year, but the lawyer says he doesn’t have it. What should I do?”

The short answer is: You and your siblings are going to have to do a thorough search of your mother’s home in between visits to the hospital because you’re going to need the originals of those documents sooner rather than later.  The hospital may let you make decisions for your mother as next-of-kin because before she became incapacitated she was able to provide direction. If there are disputes, or if your mother dies, you are going to need the originals of the Estate documents in order to probate the will.

Where the heck are the originals?

Unfortunately, my friend’s problem isn’t unusual: Many people think they’ve done the responsible thing by having a lawyer properly prepare Power of Attorney and Estate documents (and I hope you have, too http://sullivanlaw.ca/november-is-make-a-will-month/). And they have. It’s just incomplete. If they leave the lawyer’s office with one or two originals of the will and power of attorney documents, they’re setting themselves up for trouble later.

If you’re over 40 and your parents are still alive, ask yourself this question: If my parents died right now, would I know where to find their wills? If they had an accident and I suddenly had to take over their finances, would I know where to find the Power of Attorney documents that would allow me to do that?

Wills and estates are really a three-step process

A good estate lawyer’s role doesn’t end when you sign the paperwork. Our office has a three-step process:

STEP 1: Clients meet with me so I can explain what they need to know in order for me to receive proper instructions. We can discuss estate distribution, powers of attorney, determine whether financial arrangements such as trusts need to be established, etc. I receive instructions to prepare their wills and powers of attorney.

STEP 2: Having had sufficient time to review their instructions and draft the documents, clients return and we review and sign their estate documents: The will, the POA for personal care and the POA for property. The originals of these documents (several originals of the POAs, in most cases) are stored safely with SullivanLaw, while clients leave with copies.

STEP 3: To obtain or access the originals, the client or representative (in case of a death, the executor, and the case of a power of attorney, the attorney) contacts me. I have quick access to the original documents and sufficient authority to get them into the proper hands. In most cases this is simply part of the process and doesn’t cost the client or the estate anything additional.

 “But I thought lawyers always had originals.”

Many lawyers think of estate documents as transactional: The lawyer prepares the documents, the client pays the bill, and that’s that.  The truth is that lawyers don’t make a lot of money preparing wills, so it’s not a big priority for them – some don’t store originals and they don’t expect to hear from family members when a client dies or becomes incapacitated.

We think life’s a lot easier when you can think of your lawyer as a sort of trusted advisor or resource who you can call when things get tough. Storing those important documents is a service we offer.

Would your family know where to find your original will if something should happen to you?