Ensure Family Peace after Your Death

Excerpted from My Wishes by Benjamin H. Berkley © 2006

The most disappointing calls I receive are from siblings who are bickering with each other over their parents’ estate. This can be a stressful time for anyone who has lost a loved one. Having a conversation with your children while you are still here might avoid or at least minimize potential problems that could arise after you have passed. The following guidelines discuss potential issues and can serve as a primer from a parent to their children on how to behave with their siblings after the parent is gone.

Your Choice of Executor and Trustee
Children sometimes feel slighted when one child is chosen over another to be their parents’ Executor or Trustee. Children wonder if their parents did not consider them smart enough or otherwise suitable for the job.

Your choice for Executor, Trustee, or any Power of Attorney is typically decided based on practicalities and not favoritism. Perhaps your oldest child lives out of state, and therefore, it would not be logical for him or her to handle the financial decisions that would have to be made when you are no longer here. Having a conversation with your children after you have completed your estate planning paperwork will go a long way to avoid future problems between your children.

Division of Money and Other Liquid Assets
In the great majority of Wills and Trusts, there is usually an equal division of assets among children. However, you may have very good reasons not to divide your estate equally. Perhaps you have a child with whom you had little or no contact for many years, and you may feel that this child does not deserve an equal distribution. You may have one child who has been down on his or her luck, while your other child has done very well financially and is self-sufficient. You may want to give more to the child who really needs the money. Talking with your children about your decision might help them understand your reasons and avoid resentment later.

Bruce’s Story
I prepared a Trust for a widower. Bruce’s daughter and her child lived with him in his house. He had an older daughter who was married to a very successful businessman. The daughter who lived with him took care of Bruce, especially when he became ill. She had very little income and Bruce decided to leave his house, which was his major asset, to her. Upon his passing, the older daughter offered to have a collation for friends and family after the funeral service at her house, since it could accommodate more people.

Weeks later, after the Trust was read and she realized that she was not left an interest in the home, she sent her younger sister an itemized bill for paper plates, plastic utensils, deli meats, mustard, and mayonnaise as her share of the cost for the collation. A very caustic note accompanied the bill. When the younger sister did not pay, she was sued in small claims court. Fortunately, the older sister lost, but had Bruce discussed his reasons for distributing his estate the way he did with his children, it may have saved the sisters’ relationship.

If a conversation is not possible, leave a sealed letter, addressed to each child, and instruct that it is only to be delivered upon your passing. In your letter, you can explain your decisions. Be careful, however, if you have omitted a child from your Will. Unless your Will names your child and then specifically disinherits him or her, most courts will allow that child to challenge the Will for not being included in your estate.

Division of Personal Property
A Will or Trust often does not specify what each child is left. Instead, the language often reads, “All my personal property to be divided equally between my children.” In this case, you should advise your children before you pass that they should respect each other’s wishes in deciding upon a fair distribution.

Renee’s Story
Renee had three daughters. She was afraid that after her passing, the daughters would tear each other apart in an effort to take as much as possible from the house for themselves. In an effort to prevent this fighting, Renee appointed the Public Guardian as the Executor of her Will. The Public Guardian is a court-appointed official who steps in to secure the premises after an individual’s death. The Public Guardian of Renee’s estate had instructions to padlock the home and then change the locks. Thereafter, he was to auction off all of the contents, deduct his administrative fee, and divide the proceeds among the three daughters.

Division of Personal Property Without a Will
As discussed in Chapter 13, not everyone needs a Will. However, you probably have some specific items of personal property that you wish to leave to your children. Whether it is a coin collection, jewelry, or other family heirloom, you would like your children to enjoy it after you are no longer here. In such cases, tell your children what is left for them. Make sure each child knows what the others are to receive. That way, there are no surprises.

Jewelry
Jewelry is the one item that often creates the most fighting between children, especially when there are no specific instructions left. The sons usually have no interest, but the daughters and daughters-in-law are ready to run a marathon to collect the gold. Make it perfectly clear to your children and in-laws what jewelry they are to receive. Be aware, however, that even with these precautions in place, jewelry often mysteriously disappears after one’s passing.

Julia’s Story
Julia’s mother always told her that all of her jewelry would become Julia’s. However, just to avoid the possibility that some of the jewelry would disappear by the time Julia flew across the country for the funeral, her mother told her that all of the expensive jewelry was kept in a coffee can on the second shelf of the refrigerator. That way, in case there were some daughters-in-law with sticky fingers, they would be foiled trying to pull off the heist. Sure enough, when Julia arrived, one of the daughters-in-law approached her and said, “Didn’t Mom have a set of pearl earrings? I didn’t see them when I was picking out clothes for the funeral.”

Let’s Be Friends
One’s passing often results in either bringing families closer together or driving them further apart. If siblings were close before, they will become closer. However, if there was jealousy or animosity, whether there was reason for it or not, some siblings view the loss of a parent as the perfect time to finally cut themselves off from any future family ties. Parents are often tuned into ongoing disputes between their children, even when the children are not aware of what the parent knows. If you know of sibling disputes, convey to your children how important it is to you that they bury the hatchet and live their lives as a family. Remind them that friends may be gone tomorrow, but family is for life.

Ethel’s Story
Ethel had two daughters who had not talked to each other for over ten years. It was Ethel’s dying wish that her children make peace. She said she could not die until that happened. As death was imminent, she pleaded with her daughters to speak with each other. Her doctors were amazed at how she clung to life. Barely able to speak, her body wracked with pain, she acknowledged me with her eyes when I visited her in the hospice facility. I told her that I received a call from her daughter in Chicago who was on her way to see her. That night, both

As Featured in the Book

My Wishes

Benjamin H. Berkley, Attorney at Law

My Wishes is a practical guide to planning for the inevitable—offering information, sample forms and resource contacts. It provides solutions to the questions all of us think about but do not discuss.

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