Conversations to have about Estate Planning

Conversations about estate planning are necessary or helpful when family circumstances are complicated (e.g., blended families, estrangement, caregiving children, special-needs or dependent children, or heirs who cannot manage money). Some talks are purely informational (explaining what will happen). Others seek input or collaboration on practical solutions and implementation.

Challenging circumstances often force parents to decide between whether to treat all children equally or to treat children fairly or practically under the circumstances. Estate decisions after parents’ deaths can help or hurt family members and relationships. Talking in advance reduces surprises, clarifies expectations, and can lower the risk of disputes. Hearing children’s expectations may let parents consider how choices will affect their lives and whether proposed solutions are feasible and fair.

Getting input from the children to gauge their expectations allows the parents to consider the impact that their estate planning choices may have on the lives of their children. For example, if one child lives at home and the parents want to keep the home for the child to live in till that child dies, perhaps a discussion about that reality might help the family unite in support of a such a solution, or at least to make clear the parents’ thoughts.

Some discussions may be simply to inform the family (declarations) or to collaborate on estate planning approaches and implementation. For example, who is willing to serve as a fair successor trustee and settle the trust according to its own terms for the benefit of the beneficiaries? Who is willing to be trustee of an ongoing trust to manage a beneficiary’s inheritance (e.g., a special needs trust)?

Naturally some family circumstances do not allow for full discussions amongst all children. Unfortunately some children may have become estranged, such as due to psychiatric disorders or abuse, and are no longer part of the family. These estranged children nonetheless remain heirs, even when expressly disinherited, and have a right to notice and to object in court to the will or trust. Thus, they can cause legal problems for the other children, and may be especially motivated to do so if they are completely disinherited.

When children are not treated equally the estate planning needs to be handled more carefully and be supported by letters of intent by the parent while they are still alive, and kept current over time. A major consideration will be whether to fully or only partially disinherit an estranged child; if the child receives something they are less likely to contest the will or trust if it has a “no contest” clause.

Another discussion may involve a care giver child who took care of a dependent parent, as that child may expect more as they sacrificed earnings and incurred care giver stress. Sometimes the other children agree that the caregiver child inherits more, but not always.

One area where discussions are really necessary is with one’s own health care decisions. Advanced health care directives allow people to nominate agents with decision making authority. While instructions may be included regarding particular situations, it still remains important to have meaningful discussions with one’s agents to know in advance whether the agent can be counted upon to implement one’s wishes, and also so that the agent has enough understanding of the one’s values to be able to make difficult judgment calls not specifically addressed.

Discussions can also sometimes benefit from the involvement of a facilitator to keep the discussion on point and productive. The facilitator may be a professional, such as a mediator, counselor or an attorney.

The foregoing discussion is not legal advice. The foregoing brief discussion is not legal advice. Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at Dennis@DennisFordhamLaw.com and 707-263-3235.