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Where’s There’s a Will, There’s a Family Fighting Over It

Some years ago, I was at a local gift shop when I came across a small, decorative sign that read: “Where there’s a Will, there’s a family fighting over it.” It was a cute adaptation of the old saying, “Where there’s a will, there’s a way.” As an estate planning attorney who has seen more than a few family squabbles after the passing of a loved one, I found it an amusing play on words. It now sits on a shelf in my office as a reminder that even the best laid estate plan can still be the subject of a family feud.

Some families are able to navigate the loss of their parents in a spirit of relative tranquility as the generations shift forward. Other families, who may have enjoyed decades of peaceful relationships, find that the death of both parents creates or reveals conflict and division. And then, of course, there are the families who have never gotten along, and the generational shift is just the most recent showcase of that family’s dysfunction.

What, if anything, can be done to prevent a family feud after you are gone? Here are a few practical tips to help smooth the path for your family after you are gone.

Confirm that your estate planning reflects your current wishes. This will clean up any “shoulda-coulda-wouldas” in your planning. If you have been meaning to swap out your son’s name as your personal representative and list your daughter instead–do it now. The alternative is your daughter having to deal with your son’s disorganization and procrastination as he fumbles his way through the estate settlement process, even though time has shown he is not suited for the job. If you need to add a statement that the large cash gift you made to your son this year after his divorce is supposed to come out of his inheritance as an advancement–do it now. The alternative is hard feelings between your children because one received significantly more money from you when that was not your intention. Having your true wishes clearly reflected in a binding, legally enforceable estate planning document is the most important thing you can do to help your family members avoid conflict after your passing.

Check ownership of accounts and property. I have written in this column numerous times about how estate plans get “out of whack” when ownership of accounts does not jive with your planning documents. The most common example is when a child is listed as a joint owner on a parent’s bank account. For example, Mom lists Daughter as a joint owner on Mom’s bank account to facilitate bill-paying, then Mom dies and Daughter is the sole surviving owner of the joint bank account. Daughter is legally entitled to the funds in the account even though Mom’s Will stated everything was to be split among her four children equally. Mom’s Will does not legally control the ownership of the joint bank account with Daughter. Mom’s Will only applies to assets she owned in her own name, without a joint owner or named beneficiary. Now, Daughter and her siblings are quarreling over why Mom only left assets to Daughter via the joint account and seemingly left everyone else out.

A quick review of the account ownership with Mom’s estate planning attorney could have revealed this inconsistency and allowed it to be fixed prior to Mom’s death.

Check beneficiary designations. Three important rules about beneficiary designations: (1) do not name minor beneficiaries; (2) do not list one child with the expectation they will share with the rest of the family; and (3) understand that singling out certain accounts for people not otherwise listed in your estate planning can backfire if that account does not exist at the time of your death. For example, a certain account you had earmarked for your favorite grandchild could be drawn down by the time of your death, leaving them nothing.

Your estate planning attorney can give you clear and specific instructions on whether beneficiary designations are appropriate for your planning, and if they are, the exact wording to use.

Contact your “helpers.” Make sure your designated agents know you listed them as power of attorney, trustee, personal representative, etc. Some estate settlement projects get off on the wrong foot because of hurt feelings over who was named as personal representative. Tell your designated agent the location of your original legal documents. It is also possible that the wishes expressed in your Will are never carried out if the original document cannot be located after your death. This is fertile ground for a family feud, especially if the lost legal documents stated you disinherited someone or made an unequal distribution among family members.

Conduct a family meeting. It is understandable if you are reluctant to share details about what you own and your wishes with family members. However, I highly recommend you gather your loved ones together and share with them the main points of your planning. This gives everyone time to process and accept your decisions during your lifetime. When people feel they had a chance to be heard, it may decrease the likelihood they turn on each other when you are gone.

Accept the uncertainty of the future. There is no fool-proof way to avoid a family fight after you are gone. People change, relationships shift, and much of this is out of your control. But following the steps outlined above will help eliminate many of the most common sources of conflict and give your family members their best opportunity to be at peace with one another after you are gone.

This article does not constitute legal advice. Each individual should consult his or her own attorney.

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