Difficult discussions can help avoid messy family fights – Daily News

on Dec12
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Benjamin Franklin said “… in this world nothing can be said to be certain, except death and taxes.”

I would add “and the reluctance to talk about either.”

Parents are often wary of talking about their money with their adult children, and children often don’t want to discuss a parent’s death, no matter how far off or imminent that death might be. This can result in conflict in the end stages of a parent’s life and irreparable damage to the relationships of the surviving children.

Communication on these critical issues is important and often overlooked in the name of privacy.

What family should know

While every family is different, of course, there are some issues that should be discussed with family members in the event of illness or incapacity, and other issues that should be discussed with heirs. A family meeting and discussion with all or at least most members present will likely help avoid resentment in the future.

Healthcare wishes

It’s important for every adult to have an Advance Health Care Directive that spells out wishes for health care (pain medication, end-of-life care, religious beliefs, etc.) and post-death matters (organ donations, autopsy, cremation, burial, funeral arrangements). It’s equally important that to discuss with designated agents and immediate family members exactly what those wishes are.

If you are incapacitated, the designated agent will make specific decisions based on the general terms in the directive. Thus, it’s important for the agent and family members who are likely to be involved to understand things such as what “quality of life” means to you. Does it mean you can communicate? Read? Understand when someone is talking to you? Breathing on your own?

Make certain everyone, not just those named in a directive, understands those wishes. As one doctor put it, sometimes it’s the loudest voice in the room making decisions regardless of what the documents say.

Who is your decision-maker?

A power of attorney is a document that authorizes another party to act on your behalf in the event of your incapacity. People tend to think of a power of attorney as a document that deals with financial matters. It can be, but it is both more and less than that.

If all of your assets are in a living trust, then the trustee will deal with those, not your power of attorney. Your power of attorney will deal with assets outside your trust (or all of your assets if you do not have a trust). That will include insurance claims, lawsuits, choosing a health care facility, hiring caretakers, and making all personal decisions on your behalf. It’s not a small job.

Make sure your family knows who’s designated to act on your behalf and why. Give them the chance to raise objections and respond to these objections.

When family members are surprised by your choices, especially during a time of stress, discord can happen quickly.

Terms of the will and trust

Often parents do not want their children, however old, to know how wealthy they are. I’ve heard more than one parent half-heartedly joke that if their children knew how much money they had they’d want the parent dead.

But inevitably, the children will find out (and I have yet to see a case of parricide when the children do find out). It’s always better if a discussion can be had with parents and children (or other heirs), avoiding surprises and setting realistic expectations.

A child may blithely say they aren’t interested in inheriting and mom and dad can leave everything to the more needy child. That often will change when the child then learns dad and mom had far more assets than they were expecting, and then a dispute is likely.

If you’d still like to avoid talking numbers, consider having a discussion with your children or other heirs in general terms. Let them know you have a will and/or a trust, who you’ve chosen as the trustee, how your estate will be split, and whether there are specific gifts.

If you’re making specific gifts — say, of your home or family business — let the heirs know this and the terms.

I once had a client who had often told Child A who was involved in the family business that Child A would inherit the business. Child A assumed, incorrectly, that Child A would inherit the business when dad died and this would be a direct gift before any other assets were split between Child A and Child B.

Child A overlooked that mom was still alive and dependent on the income from the business and that the business was far more than half of the value of the estate. A gift of the business to Child A with other assets split equally between the two children would have dramatically reduced the share of Child B.

What dad meant was that while mom was alive, the business would remain owned by the trust with the income supporting mom. Only after mom also passed on would Child A receive the business as part of Child A’s one-half share. This miscommunication caused significant strife between Child A, mom and Child B.

The devil is always in the details

A family meeting discussing your estate and desires for care can alleviate difficulties for the family in the long term. Be as clear and detailed as possible, allowing all parties to voice their opinions. You don’t have to change the plan, but you may be surprised with the responses and find a better way.

Estate planning documents can only do so much — the rest is up to you.

Teresa J. Rhyne is an attorney practicing in estate planning and trust administration in Riverside and Paso Robles. She is also the #1 New York Times bestselling author of “The Dog Lived (and So Will I)” and “Poppy in The Wild” You can reach her at Teresa@trlawgroup.net

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