Television and film have painted an abnormal picture of how an estate is administered after death. On television, when someone dies there is a dramatic reading of the will, in which all of the people closest to the decedent (or at least central to the plot of the story) sit in a conference room while the lawyer boldly reads the unexpected provisions within the last will and testament.
This portrayal is both unrealistic and generally a bad idea.
In real life, a highly secretive and shocking will is rarely a good idea.
First, surprises often lead to contentious court battles. If someone is surprised or hurt by an unexpected provision in a will, that person may contest the will in court, which can tie up the probate process for a significant time.
Second, because the decedent is already gone, bitterness against the decedent may be transferred to those still living, such as the executor or beneficiaries, regardless of whether they played any role in the planning.
Instead of leaving a surprise will, a better option is to be transparent with family members as much as reasonably possible. Because most families already set aside time to be together over the holidays, the November and December holiday season provides a good opportunity to discuss estate planning.
After deciding to include loved ones in the estate planning conversation, the next step is to schedule some time with family or friends. This should be approached cautiously, as estate planning conversations often cause people to jump to an ominous conclusion. A soft approach may to be to mention a friend that recently completed documents and a desire to complete documents while still healthy.
Next, a determination should be made of whether in-laws should be part of the conversation. Although it may be difficult, treating all in-laws the same should be the goal in the family meeting. If there is a daughter-in-law or son-in-law that likely will be controlling or difficult, the best option simply may be to ask that only children be part of the family meeting.
Prepare for the meeting in advance by writing down the specific roles that need to be filled which include power of attorney and healthcare power of attorney agents, as well as the executor and successor executor. For trust planning, the role of trustee also must be filled, particularly for any ongoing sub-trusts for beneficiaries.
Specific beneficiaries and distributions must also be discussed. Parents often project a desire for specific pieces of property onto their children, but talking about options can make sure that all family members understand the actual wishes of everyone involved.
The most important part of the family meeting is to hear the suggestions and concerns of everyone involved. Parents can be very close to their children and know them well, but the dynamic between siblings is simply different.
Furthermore, most adult family members who get along well can acknowledge their own concerns about serving in a fiduciary role. This feedback can be especially important if considering setting up a trust for the ongoing care needs of a beneficiary.
Finally, it should be made clear in the family meeting that while each loved one’s input is appreciated and respected, ultimately the individual must make the final decision regarding fiduciary roles and beneficiaries. As much as possible, loved ones should be told what choices ultimately are made so that there are no surprises later.
The goal of estate planning should be more than distribution, but also the protection of family relationships. Transparency during life can protect familial bonds after death.