One man couldn't understand why his sister was fighting with him. Their father — using a homemade will — left all his ‚Äúpersonal stuff‚ÄĚ to his son while the other assets were split between the daughter and the son. The battle was over their late mother's jewelry, said Les Kotzer, an estate lawyer in Toronto, who has written a book with his law partner ‚ÄúThe Family Fight: Planning to Avoid It.‚ÄĚ
The son maintained that the ‚Äúpersonal stuff‚ÄĚ included their mother's jewelry while the daughter disagreed, Kotzer said. ‚ÄúThey were fighting over the words ‚Äėmy personal stuff,' what does that mean?‚ÄĚ Kotzer said. ‚ÄúDoes it mean the stuff that dad inherited from mom, which now becomes his. Or does it mean his stuff?‚ÄĚ
Kotzer said he sees fighting like this all the time. The death of a parent could rip a family apart if the parent didn't leave a will with clear instructions on how the estate should be divided. ‚ÄúThe parents don't want the kids to fight, but the problem is the parent often doesn't plan properly,‚ÄĚ Kotzer said.
Estate planning is critical because it's the chance people have to see that their possessions land into the hands of their loved ones with the least possible administration and tax costs, said Little Rock attorney Wayne Ball, who has more than 25 years of experience of estate planning, taxation and corporate law. ‚ÄúIf they don't [have a will], chaos can result,‚ÄĚ Ball said. ‚ÄúThey are just relying on chance.‚ÄĚ
About 60 to 70 percent of the population hasn't bothered creating a will, Kotzer said. Many ‚Äúpeople don't have a good way to learn what's available, so they just procrastinate,‚ÄĚ Ball said. And those that have wills either haven't updated them in years — or worse — tried to do it themselves.
‚ÄúI'm seeing a lot of disasters waiting to happen with these homemade wills,‚ÄĚ Kotzer said. Every will has to be tailor made for each situation, he said.
‚ÄúYou have to be very, very careful because people add things in the will that shouldn't be in there,‚ÄĚ Kotzer said. ‚ÄúOr they don't witness it properly.‚ÄĚ Other problems with homemade wills include scratching out words or repeating clauses, which add to the confusion, bad blood and costs of trying to sort it out.
Do-it-yourself will kits are just as dangerous, Ball said. ‚ÄúPeople don't always know the right questions to ask,‚ÄĚ he said. ‚ÄúAn attorney is going to look at the circumstance and find out if there are other areas that need to be addressed.‚ÄĚ
Some adult children don't trust their brothers or sisters. That suspicion is highlighted when the child who has been acting as a caregiver to the dying parent has had access to the checking account, Ball said. After the death, the other child, who couldn't take care of the parent, might think the care giving sibling had been using the parent's checking account as a personal ATM machine.
Even if everything was handled properly by the care giving child, the other children think, ‚ÄúWas something there that they got that I didn't?‚ÄĚ Ball said.
Without a proper will, bad blood can erupt as soon as the document is read.
Family heirlooms or items that have some special meanings, such as a Christmas ornaments, can cause problems. If the sentimental item isn't specifically mentioned in the will as to who gets it, the parents think the children will just work it out. The children might not, though, Ball said. And most of the small items don't justify getting attorneys and fighting over them in court.
‚ÄúBut what happens is you have this animosity that just continues in the family and it doesn't get relieved,‚ÄĚ Ball said. He's had cases where the siblings can't even stand to be in the same room with each other.
Blended families are a touchy situation too. Ball said the mementoes and photos in blended families need to be distributed before a parent dies, or they can deal a potentially lethal blow to the family relationship. Old photos could be tossed in the trash by one side of the step family.
‚ÄúThen you've really got a bad situation that's probably never going to go away,‚ÄĚ Ball said.
Money may seem like the easiest asset to distribute to the children, but that too can cause stress, Kotzer said. ‚Äú[Parents] don't realize that equity isn't always fair,‚ÄĚ he said. ‚ÄúSometimes it's not fair to leave it all equal to your kids.‚ÄĚ One of the children may have already gotten money for college or a down payment on a house that hasn't been paid back.
‚ÄúNow he gets that money plus one third of your estate, the other kids may be upset,‚ÄĚ Kotzer said.
Dying without a will isn't pleasant either because the children are treated as equals in the eyes of the law, he said. ‚ÄúThe law doesn't care who was closer,‚ÄĚ Kotzer said. ‚ÄúIt's an absolute mess.‚ÄĚ
Kotzer said one of the first steps to avoiding fights is for the children to have a chat with their parents about the family mementos and who is going to get what. ‚ÄúBeing a parent was never an easy job and they need to go ahead and make these decisions,‚ÄĚ Ball said.
If the parent can't decide, a neutral system needs to be developed, such as flipping a coin or drawing straws, so the assets could be distributed, Kotzer said.¬† He also states that the best advice is to learn about estate planning. ‚ÄúThe last thing you want is your estate attorney to be the teacher of what you need to know,‚ÄĚ he said. ‚ÄúYou should go in there armed with information.‚ÄĚ
Usually what sparks action is if a parent goes through a fight over a will with his siblings and doesn't want his children to go through the same thing, Ball said.
Ball suggests going to an attorney to establish a will. ‚ÄúThere are many things that an attorney can provide in addition to just the documentation,‚ÄĚ he said.
Kotzer also stressed that the will must be created properly. If it isn't, and the siblings can't get over their animosity toward each other, it impacts later generations, Kotzer said. ‚ÄúThat's what we see over and over,‚ÄĚ he said.
Wayne Ball, who was recently named to the Top 100 attorneys list by Worth magazine, gave us some final thoughts on what to do when making your own will.¬†
‚ÄúDo something now. Don't put it off. Most people wait until it's too late. Eight out of 10 [people] do not have a will. Do not wait until you know all the answers; you never will.¬† Find someone you can trust who will guide you.
‚ÄúSelect an attorney who concentrates practicing in the area of estate planning and has had experience doing it. Most attorneys can draft wills. But you are better off working with an attorney who devotes a significant amount of time to this area, rather than one who does only one or two wills a year.
‚ÄúConsider making completed gifts during your lifetime.¬† It is difficult to challenge your gifts while you are still alive.
‚ÄúConsider a family meeting with the attorney and other trusted advisors to explain to your children that you have completed an estate plan because you care about them. You do not have to give specific details of the plan, but can give as much as you want. Explain that the advisors are a part to the team used to put the plan together and that they are available to assist them in the future. Children who cannot be present can be added by telephone.‚ÄĚ