- The Washington Times - Sunday, May 19, 2002

Elder-law attorney Robert E. Morin observes a lot of dissension in his line of business. Everywhere he looks, he says, he sees family members sons and daughters, nieces and nephews fighting over the assets of the deceased.

The prized Chinese scroll. Mom's antique emerald ring. The French-seaside painting over the mantle. Even the litter box.

Yes, a used kitty-litter box recently was at the center of some serious arguments among members of one client family, says Mr. Morin, a member of the National Academy of Elder Law Attorneys.

"Why? Good question," he says. "That's sometimes the kind of animosity and dissension that occurs when you divide personal property. It's laughable, but that's what can happen."

Most loving parents perish the thought that their money and personal property may work in their disfavor upon their deaths, shaking the foundations of the strong family units they worked to build. That is the problem, say elder-law specialists: Many people refuse or neglect to plan and discuss their twilight years with their children, ultimately leaving their heirs without legal backup and essentially willing loved ones a blank page on which to project desires for the distribution of their assets.

"The way I like to say it is that you need to think about, plan and discuss the last third of your life as diligently as the first two-thirds," says Mr. Morin, who practices in the metropolitan area. "In doing so, you take the pressure off your children. It's really a gift to them to let them know your wishes it prevents confusion, dissension and disagreement."

Parents generally enjoy discussing how they're going to live, not the nuts and bolts of their eventual deaths let alone designing a contract about it.

"Death is always a difficult subject for either parents or children," says Sally Hurme, a lawyer and a consumer-protection specialist at AARP. "It's hard for parents to talk about their impending mortality, and it's also very difficult for the adult kids to start the conversation. It's like 'I can't wait til you go.' I think there's generally [a feeling that] 'we don't want to appear impatient or greedy.'"

In addition, she says, a "cultural mystique" surrounds the issue of estate planning.

"You look back to the movies and the great drama of the reading of the will in the lawyer's office and the great elements of surprise when people don't get what they're anticipating. This is very much Hollywood, and I think makes for good movies but bad family harmony."

Money is rich in meaning and symbolism, says Eileen Gallo, a Los Angeles psychotherapist whose work with families often centers around money-related issues.

"It means many different things to people security, love," Ms. Gallo says. "And how people organize this information is different, so siblings can have different feelings about it. It brings up a lot of unresolved issues, like how did the children feel they were treated when growing up. Did they feel there was favoritism?"

She believes people shy away from estate planning because the subtext is death.

"They think that if they sign the will, they will die the next day," says Ms. Gallo, co-author of "Silver Spoon Kids: How Successful Parents Raise Responsible Kids."

"But the fact is, most people don't just drop dead. Most become incapacitated, so that's what you're really looking at. What if someone has a stroke? Now what do you do? What are their wishes?"

Mr. Morin says many families have not even covered the basics of living let alone tackled how the estate should be divided.

"I have often been in emergency rooms in hospitals where children are present," he says. "The doctor asks them questions, and there is disagreement among the children about what the parent would or wouldn't have wanted in terms of health care at the end of life," Mr. Morin says.

John, 44, a Northern Virginia auto repairman who does not want to be identified further, now serves as the full-time caregiver to his Alzheimer's-affected father. He says he learned his parents' wishes the hard way by necessity.

Eight years ago, his 75-year-old mother began to show signs of dementia, John says.

"She started forgetting things, mentioning stuff that had happened years before. It becomes obvious to family members," he says. One day, she lost her checkbook at Safeway. John went to the bank, closed the account and began to do all the shopping for the family.

"That was just the beginning," he says. "It wasn't even a choice. It fell into my lap. It's like a house on fire you have to do something immediately."

John says the family had made a big mistake in neglecting to iron out matters of care, responsibility and estate before his parents began to decline.

"Everyone needs to sit down and have the talk about how your parents want to be treated, property, money, you name it," he says. "It's not fun, but it's necessary."

His parents had drafted wills, but the documents were quite old, John says. (Elder-law advisers say such information should be reviewed every five years or so.) He hired a lawyer to review the wills and discuss other issues with his parents, such as the durable power of attorney, which designates one trustee to be in charge of writing checks and handling all the money during the will-holder's incapacitation.

As a matter of respect, John says, he left the house when the lawyer visited so his parents could speak to her in confidence.

People can expect to pay about $250 an hour for the services of an estate-planning attorney, Mr. Morin says. A lawyer will ask questions about property and estimated net worth. He also will probe into family matters: Are there children who have problems? Bankruptcy matters with children? Do the parents have any estate-tax problems?

Based on this discussion, the client and lawyer can create either a simple will or a living trust.

A living trust serves as an alternative to a will; it is set up when the grantor is alive. All or most debts are transferred into a living trust and then the grantor administers it as a trustee. At the time of his death, assets in the living trust are distributed according to the provisions, bypassing court supervision.

In the case of John's family, "What they did was update the wills" with regard to property, he says. "People do change their minds you see it in the best of families. And even when my mother passed away [in 2000], there were questions from faraway families about her will, even though it was none of their business. As my lawyer said, it's the typical American family."

Instructions and divisions

Family loyalty often goes out the window when money comes up, says Jeffrey L. Condon, a family inheritance planning attorney who practices in Santa Monica, Calif.

"It's a whole new ballgame," says Mr. Condon, who also co-wrote "Beyond the Grave: The Right Way and the Wrong Way of Leaving Money to Your Children (and Others)." "It's human nature. People presume everything will go OK after their death with the respect to the transfer of wealth. Maybe it will, but we never rely on that presumption."

It's essential to talk about end-of-life decisions and asset distribution before age begins to take its toll on family members, he says. If an inheritance plan is discussed and executed correctly, parents can minimize the likelihood of dissension among family members.

"But if it's bad, you have increased the chances of causing estrangement in the family," Mr. Condon says.

He says general instruction to divide personal property "equally" may not apply, because a parent may have promised a certain item to a certain child; there is an understanding spoken or silent that one child is to receive a certain item; or one child may have staked out a certain item and feels entitled to it.

Mr. Condon suggests that parents convene a family meeting with adult children to discuss their ideas for asset distribution.

"Talk about the proposed plan and see if the children have any problems," he says. "Since the parents are doing it for the children anyway, why not solicit their views?"

Children might dispute several key points in a plan, Mr. Condon says. One is the issue of unequal inheritances. Another centers around parents designating one child rather than all siblings as trustee.

"Children have one basic expectation: being treated financially fairly," he says. "But some unequal inheritances are done intentionally. If my children are estranged or if there is an ungrateful child; if there's a division in the family, those parents may want to leave the children nothing or less. Maybe we'll put extra special language in the trust that explains the reason why a child is not receiving an equal share or being cut out. But now you've dumped the cut-out sibling into the laps of the other children, so that's a problem."

Then, there is the rather common decision to leave one child a smaller share of the estate because he is more financially successful than other siblings, Mr. Condon says.

"That's called the 'punishing success and rewarding failure scenario': It's going to create conflict with the siblings," he says. "You then have the successful child saying, 'They punish me because I'm making more? How dare Mom and Dad leave me less."

Whatever the reasoning, tell the children now, advises Ms. Hurme of the AARP.

"Don't leave it to supposition, and then the family fights to follow, if you haven't made that explanation," she says. "I think that it would be much better to hold that conversation than to have it be a surprise without understanding, left to conjecture as to why he got more than she."

Parents also can offer explanations in the will, Ms. Hurme says.

"If you can't do it face to face, leave a letter with the will," she says. "It doesn't become part of the legal document but could be left with instructions to be delivered upon your death. That's one way to have that communication; but if you have the face-to-face conversation, you can make sure your child is going to understand, that all of her questions or concerns are responded to, which is going to be more difficult than a black-and-white letter that is just read."

A letter is better than nothing, Ms. Hurme says, "but if your real goal is to make sure your child understands, do it ahead of time. And if you anticipate that the child who is not getting what they might have expected is going to rant and rave to your face, they're also going to rant and rave after you've died. If our starting premise is what to do to alleviate family discord after you're dead, your worst suspicions of your family creating a scene after you die will probably be fulfilled."

Mr. Condon also advises against appointing one child as the sole after-death agent, believing that it's a slick road to contention.

Mr. Morin, however, advises clients to take their chances.

Designating more than one child as the after-death agent increases the cost of the estate, "because you have to get the attorney to get signatures from all the people," he says. "It's cumbersome, time-consuming and expensive, even if they all agree.

"It's much easier to do the estate administration if you have someone local. Put language in the document that says that for administrative reasons I have chosen one of my children to be the personal representative or executor, but I expect that my personal representative would fully consult with all of my children on any decision that has to be made under this document."

How about that Fiestaware, those loose diamonds, the circa 1960's minidresses still hanging in mom's closet?

Mr. Condon suggests leaving each child specific items, using one or more of the following methods:

• Use the inheritance plan to designate the specific distribution.

• Use a "side letter," which is not part of the official will or living trust and, therefore, is not legally binding, but clearly states the instructions.

• Tag or mark the underside of each article with the name of each intended child.

• Use a photo journal, in which each item is photographed, writing the intended recipient's name on it.

If parents face children who just cannot get along when dividing personal property, parents can provide in their inheritance plan that all their personal possessions will be sold after their death and the proceeds divided equally.

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