Bones of Contention

         Bones of Contention- Settling a decedent’s estate can test the personal strengths and weaknesses of the surviving family members’ abilities to get along with each other.  Any preexisting distrust, jealousy, and animosity harbored by any of the surviving family members towards one another can erupt into hostility, especially when money is involved.  Let us consider some specific scenarios that can create fertile ground for quarrels amongst a decedent’s surviving children and what can be done to prevent or lessen such quarrels.

          Anytime beneficiaries feel that they are not receiving what they are entitled to or feel that they are being unfairly treated resentment brews.  The fighting between the beneficiaries and trustee or executor, as relevant, administering the estate that follows often exacerbates the costs, time, and aggravation associated with administering the estate.  The associated litigation fees sometimes eat up much of the decedent’s estate.

          Unequal distributions amongst surviving children can easily – rightly or wrongly – leave the children at the short end of the stick feeling disgruntled.  There are various ways and reasons why children receive different amounts. 

          One way inequality can result is because children receive different pieces of real properties which have unequal values.  The disparity in land can be offset by gifting cash or other assets to those beneficiaries who receives less in real property, such as through life insurance.  That presumes, of course, that the parent desires to treat all children equally.  If not, then it can be helpful to the person who settles the estate if the parent while still alive documents in writing his or her intention to have unequal distributions to support the parent’s will or trust, as relevant.

          Naturally, if the parent was susceptible to undue influence, coercion or fraud, or if the parent had diminished mental capacity, when the parent executed his or her estate plan then those children receiving less than another child may decide to contest the estate plan as being invalid on such grounds.

          When one child receives substantially more lifetime gifts than another that can lead to discontent both during the parents’ lifetimes and afterwards amongst their surviving children.  Some parents try to level the playing field at their death by counting the significant lifetime gifts made to a child as advances against that child’s inheritance.  After the parent dies the child who received the large lifetime gifts may fee considerable disappointment over the sizable reduction they experience in their inheritance.  There can be a disconnect in the child’s mind as to why such “old” gifts from years ago should reduce their inheritance.

          Anticipated quarrels amongst the children can sometimes be reduced if the parent while alive carefully explains to the child who received large lifetime gifts that these lifetime are advances against their future inheritance.  Documentation of the advances is also necessary for administration purposes.  Alternatively, a parent may simply equalize lifetime gifting amongst the children and eliminate the issue.

          It is desirable that whoever as trustee or executor settles a decedent’s estate possess the trust and confidence of the beneficiaries.  Otherwise the beneficiaries are more likely to distrust and contest how the estate is being administered.  Selecting a good person to administer your trust or estate  may mean looking beyond one’s own children and considering capable friends, siblings, nieces and nephews.  The fact that the trustee or executor is not a beneficiary of the estate, but is reasonably compensated for their services, means that they do not have an inherent conflict of interest.

          Many clients who get their affairs in order jokingly tell me that they do not care what happens after they die because they won’t be here.  But, anyone who gets their affairs in order to protect surviving loved surely does not intend their estate to become a bone of contention amongst these same loved ones.  Knowing one’s beneficiaries and taking steps to address potential sources of discontent, like discussed above, is part of good estate planning that leaves a legacy of love and thoughtfulness for one’s family.