ElderLaw News-The Estate Planning & Elder Law Firm, P.C. — MD, VA, DC
ElderLaw News
ElderLaw News is a weekly e-newsletter that brings you reports of legal developments and other trends of vital interest to seniors and their advocates. This newsletter is brought to you by The Estate Planning & Elder Law Firm, P.C., William S. Fralin, Esq., President., William S. Fralin, Esq., President.

Intra-Family Conflict After Death – It’s Expensive

Within the confines of this office’s newsletters over the years are strategies designed to assist you in planning your estate to implement your decisions, your goals, avoid taxes and avoid probate. But were you aware that even the best laid estate plans can be torn apart by feuding family members after you are gone?

Intra-family conflict can arise between siblings and between generations. It can arise when one child is favored over others or is perceived by the others to have been so favored. It can arise when a child who is named as the fiduciary has personal interests that are not in line with the interests of the other beneficiaries. It can arise over high value estate accounts and over low value tangible personal property that is loaded with sentimental baggage. When such conflict arises, it is not uncommon for the various parties to seek legal counsel and the conflict can land the family in court. Litigation is very expensive, and sometimes is unavoidable, such as cases where the fiduciary is in serious breach of his/her fiduciary duties.

On the other hand, there are things that you can do to avoid conflict in your family after you are gone. The first step, and perhaps the most important one, is to make sure that you know your family – both the good and the bad. You can love all your children and grandchildren very much and still recognize that one or more of them have serious financial or addiction problems that might not make them good choices as a fiduciary. You can love your family and recognize that some of your children do not get along and will not work together well. You may have a child who means well but really doesn’t understand the realities of financial planning or managing wealth and who needs a trust to protect his or her interests. You can have a child who is great with money but oblivious to the emotional interactions within the family. Once you have identified potential problems within the family, discuss with your attorney how to draft your documents to manage or avoid the potential conflicts you can already see.

For instance, if you have children who do not get along and you have determined that trust planning for them meets your goals, you might avoid making the children trustees of each other’s trusts. That way they do not have to be in conflict with one another over distributions from the trust and can focus, instead, on their relationship as siblings. This may be particularly true in instances where a trust is created for only one child as a result of an addiction issue. Depending on the circumstances, a professional trustee may even make sense. A no contest clause could also make sense in appropriate circumstances, especially where you are making an uneven distribution of your estate, or you have one or two descendants who like to cause trouble.

The second step is to know your assets and the relative importance and value that each member of the family places on such assets. For instance, if you have a family farm, it may be very important to maintain the farm as such while others may see it as a development opportunity. If your goal is to maintain the property as a family farm, you will want to take steps to ensure that this asset is controlled by family members who think as you do. If you have other assets that you can use to equalize bequests to your family, it may make sense to give the farm to one child who wants to maintain the farm, while giving the liquid assets to another who has no interest in farming. If you have multiple family members who value the farm, or really any business, it may make sense to create a family LLC for the farm that you can run as a family while you are alive. Nothing, and I mean nothing, will pass on your values and traditions like incorporating your family into your business while you are alive. By doing so, you pass on your passions, your business strategies, your values in ways that make them truly alive for the next generations.

A similar issue arises with respect to tangible personal property. It is not uncommon for family members to fight over the distribution of tangible personal property. While most families ultimately work this issue out themselves, if only because the cost of legal help rarely makes sense, it can cause tensions within the family that may take a long time to clear up. By knowing the importance that your family members place on particular items of tangible personal property, you can alleviate these tensions in many cases while you are alive. You can give the tangibles away to particular people during your lifetime. This can be done one-on-one or at a family party where the children take turns choosing items. If you are concerned that the children may fight over things, you can even sell them and take a personal vacation.

The third step is to communicate with your family. It is rarely a good idea to keep your estate plan a secret from your family members. If you have decided that only one of your children should be a fiduciary or only one needs a trust or you have made some other uneven distribution of your estate, let all of the children know. Explain, while you can, why you have made your choices as you have. Usually, the family understands your decisions and, even if they do not like the decisions, they are willing to accept your decisions on the matter. After all, it is your money and you can do with it what you like. Secrecy in the family, especially where one family member has been favored by an ailing parent and the other family members feel isolated from that parent, is a leading cause of conflict that ultimately ends up resolved in court. Not just because one child feels left out, but because the trust within the family has been broken. Once you are gone, the opportunity is lost.

The fourth step is to encourage your named fiduciary to seek qualified legal counsel in connection with the administration of your estate. Some problems can be easily resolved with careful guidance of the fiduciary through the administration of the estate. It can also reduce conflict within the family to have a dispassionate third party communicate with the beneficiaries, explain the process etc., so that the focus of any disappointment or anger may not rest on the child named to act your fiduciary.

Addressing potential conflicts within the family before death with your attorney cannot guarantee that conflicts will not arise. However, an experienced estate planner like the attorneys at The Estate Planning & Elder Law Firm can offer individualized advice and assistance to reduce the conflict while you are alive and to minimize the conflict after your death.


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The Estate Planning & Elder Law Firm, P.C.

The Estate Planning & Elder Law Firm, P.C. is an elder law firm. We represent older persons, disabled persons, their families, and their advocates. The practice of elder law includes estate planning, estate and trust administration, powers of attorney, advance medical directives, titling of assets and designations of beneficiaries, guardianships, conservatorships, and public entitlements such as Medicaid, Medicare, Social Security, and SSI, disability planning, income tax planning and preparation, care management, and fiduciary services. For more information about The Estate Planning & Elder Law Firm, P.C., please visit our website at http://www.chroniccareadvocacy.com.

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This newsletter is not intended as a substitute for legal counsel. While every precaution has been taken to make this newsletter accurate, we assume no responsibility for errors, omissions, or damages resulting from the use of the information in this newsletter. The Estate Planning & Elder Law Firm, P.C. thanks the law firm of Hook Law Center for their input to this newsletter.

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