Making Estate Planning a Family Affair

Very few people are excited about drawing up their estate plans. The process often involves asking difficult questions and making even harder decisions. But more than that, it requires a person to accept his or her own mortality and face the fact that they are not going to be around forever.

Because of the sensitive nature of estate planning, many people choose to do it in private - if they do it at all. Not only is it important for everyone, no matter how much or how little they own, to have a will, it is equally important that they involve their families in the process.

Why You Need a Will

There is a pervasive belief that estate planning is only for the wealthy. This, however, could not be further from the truth. Most people own some type of property, whether it is a family home or bank account. Without a will, the state gets to decide how to distribute this property at death according to the state's intestacy laws. These laws generally leave the property to the surviving spouse and/or children.

The problem with state intestacy laws, however, is that they are based on blood relation. They do not take into account the fact that many Americans have non-traditional families. For example, if a person has been married more than once with children and step-children from each marriage, has a civil union, domestic partnership or wishes to leave property to an unrelated person, then the intestacy laws will not carry out their final wishes.

By preparing a basic will, an individual gets to control how their property is distributed. If they want to leave money to charity or create a trust to take care of a pet, they can do that. If they own a family business they want to see carried on rather than broken up, they can do that too with the right estate planning tools.

Getting Your Family Involved

There are many reasons why a person may not want to get their family involved in their estate planning. They may want to avoid an uncomfortable conversation or prevent conflict and sibling rivalry, for example. However, it is usually better to deal with a potentially uncomfortable situation now rather than leave it for the family to sort out (or fight over) after death.

How much involvement a person wants his or her family to have in the process is a personal choice and depends largely on family dynamics. Generally, it is a good idea for an individual to meet privately with an attorney to discuss and develop the estate plan, regardless of how open he or she intends to be with their loved ones. Even if a family member accompanies the individual to the lawyer's office, it is likely that the attorney will insist on speaking in private without the family member present. This is for good reason - to prevent the appearance of undue influence by a family member and to protect the confidentiality of the discussion between the individual and the attorney.

At a minimum, a person should discuss the contents of his or her estate plan with their spouse, children and anyone else they have decided to leave property to. This will give them an opportunity to explain why they made the decisions they did, which can be of particular importance if they have decided to leave more property to one child over the others.

Likewise, it is important for the individual to explain his or her choice of executor. It is best to choose a trusted advisor to fill this role rather than a family member to prevent jealousy and discord. However, if a family member is selected, then the person should be prepared for objections to the choice.

A decision that may seem unreasonable after an individual's death when they are not there to explain it may become much more understandable and acceptable after a reasonable conversation with the family. Additionally, this also can help protect against any family members seeking to challenge the contents of the will in an expensive and time-consuming will contest.

Engaging loved ones in the estate planning process does not mean that an individual has to turn over control of the process to them. It is more about having a frank conversation about a person's final wishes than it is about asking for the family's input in the decision-making process. However, if a family member raises a legitimate concern or wishes to decline certain property, then an individual can easily can change the terms of the will or other estate planning documents if they so choose.

Choosing the Right Estate Planning Attorney

While the will is considered the foundation of any good estate plan, it may not be the only legal document necessary to carry out an individual's wishes. An attorney experienced in developing comprehensive estate plans can suggest other estate planning tools that may be necessary based on each person's specific situation.

For example, the more complex an individual's family situation and property holdings, then the more likely it is that he or she will need more than just a will. This is particularly true in non-traditional families. With high divorce and remarriage rates, many people have children from more than one marriage. They also may want to leave something to their step-children or grandchildren. A knowledgeable estate planning attorney can help ensure that no one is left out of the estate plan.

Some of the other decisions an estate attorney can help with include:

  • Choice of an impartial executor
  • Appropriate asset distribution
  • Minimizing exposure to estate and other taxes
  • Succession plans for family businesses
  • Guardianship for young children
  • Distribution of property as gifts prior to death
  • Use of living (inter vivos) trusts
  • Living wills, health care directives and incapacity planning

It is never too soon to begin an estate plan. The plan can be changed over the years to reflect changes in an individual's family, property and wishes. By discussing the contents of the estate plan with their family and loved ones, individuals can decrease the possibility of fighting and legal challenges to their wills after their deaths.