Can I Promote Family Harmony With My Estate Plan?

The short answer to this question is of course yes, but it may take some careful thought.   For most of us, our family is the most important thing in our lives – the most valuable asset, so what can be done to protect relationships in an estate plan?  Sometimes conflict can be prevented through merely providing clear instructions to the right people, and in other contexts – it is much more complicated than that.  We have come a long way since the “in terrorem” or “no contest” clause was a standard feature of wills, and many practitioners are of the opinion that the “no contest” clause – which purports to penalizes a challenger of a will – leaves the testator (person writing the will) with a false sense of security that the clause will prevent a lawsuit.

So what if your family perhaps doesn’t resemble the 1950’s TV family?  Most families today certainly don’t.   The AARP Magazine recently (April/May 2012) had an article about parent-child estrangements.    It features an interview with California psychologist Joshua Coleman, Ph.D. who recommends the following tips for healing a serious estrangement with your adult child:

1. Own up to the conflict and take responsibility for mistakes you have made.
2. Accept a contrary view and don’t try to prove them wrong (use empathic listening).
3. Don’t try to make your child feel sorry for what they’ve done, this is likely to escalate resentment.
4. Hear them out – ask questions and really listen attentively, not defensively.
5. Don’t give up too soon, you may need to reach out long before the healing can begin.
6. Avoid giving criticism or unsolicited advice.

Each of us is free to walk away from difficult or unfulfilling relationships, the article observes, but it also poses a more complicated follow-up question – what are we sacrificing for that freedom to walk away?

As parents live longer, adult children may struggle with the how and when of becoming an adult in their relationship with a parent, and for some that may never happen.  Many of our sibling relationships may get stuck in a particular time and not progress beyond into the present.  If siblings presuppose equal shares, then it’s a good idea to think about fairly typical scenarios in today’s world: what if one sibling is well off and another is struggling financially? How do you treat an adult child who has been the primary caregiver for a frail or ailing parent?  The best thing to start with, as Jane Bryant Quinn observed – is a conversation with children ahead of time about what you’re doing and why.  She quotes a New Hampshire estate planner who states “the greatest mistake I’ve seen in my practice comes when children have neither been apprised of a parent’s intentions nor been invited to participate in the decision-making process.”  Clients are of course free to not speak to their children, and some of my colleagues advise against it and tend to value more highly the privacy interest of the client making the will.  This is fine, but people making an estate plan need to know the potential cost for such silence.

Inheritance anxiety can also escalate where a surviving parent remarries.  Calling this a “blended family,” when the children are all adults may be a bit of a stretch.   Keep in mind that the assumption of inheritance among children may complicate their expectation of money with love, so meaningful communication (in whichever form works for the client) is strongly advised.

Finally, I’ll refer to a June 10, 2012, Denver Post article by Kirk Mitchell  which was about a suspected double murder-suicide in southwestern Colorado that may have been committed by a very resentful son who was not left ranch property from his mother.  For better or for worse, children expect inherit their parents’ property and siblings expect equal distribution.  There are many ways to soften the sting of unequal distribution.

It’s best to consider some basic aspects of human nature when you’re making an estate plan, along with the value of family relationships.  Another good idea is to address personal property – items that may have high emotional value like inherited jewelry and other personal items, things with sentimental value – in a separate memorandum (this is a nice feature of Colorado law) referred to in the will.  I often advise clients to share their stories about such items with their family members while they are still living, and in some circumstances –  if the client is so inclined – to give away these items to the intended recipients.  The bottom line – it is best to try and live in and honor those treasured relationships now so they remain the biggest part of your legacy.

©Barbara Cashman, LLC  www.DenverElderLaw.org