The Rocky Mountain News

Will Power
Making an estate plan can keep a family together

By Janet Simons
Rocky Mountain News

Sixteen months ago, when Melly Kinnard's doctor told her she was gravely ill from liver failure, she couldn't face telling her daughter and husband how bad it was.

"I knew I was slipping away. I was so sick. I just knew I couldn't live much longer," Kinnard said. She was 56.

Kinnard, a professional organizer, realized that the best thing she could do for her family would be to use her remaining strength and time to get her affairs in order. She'd seen many personal and professional examples of the turmoil and rancor that frequently follow a death that no one has prepared for.

After witnessing a shocking number of such temper tantrums, brouhahas and downright brawls among heirs, Les Kotzer, an estate-planning lawyer, was inspired to write The Family Fight: Planning to Avoid It (Continental Atlantic Publications, $19.95).

"When siblings get into fights over their parents' estates, they think they win if they get the property they want," Kotzer said. "But that's not winning. Winning is when they all still love each other."

Only 30 percent of adults have wills, says Kotzer. Even fewer have wills that are up to date and have been professionally drafted, he says, and fewer still have durable powers of attorney that allow someone to handle health-care and property issues in case of disability.

Kinnard had signed a will only six months before her illness was diagnosed, but she knew there still were many details to be considered. She told her daughters, then 24 and 21, to go through her jewelry, choosing pieces by turn. She told her best friend, Sharon, which sister was to have her car. She wrote a letter saying she wanted her daughters to cast her ashes from the Ponte Vecchio in Florence, and she gave copies of it to her lawyer and her daughters' godmothers.

Then she recovered - and set out on a mission.

Kinnard took a fresh look at an organizing workbook she'd devised in 1996. It has 28 dividers tabbed with such labels as "Investments," "Insurance" and "Military Papers." She added a "Who Gets the Jewelry" section.

The workbook's formal title is "Get Organized!" but when she teaches classes using it, she often refers to it as "The If I Die Book."

"It's the parents' responsibility to get their heads out of the sand," Kinnard said. "It's unkind of them to be unprepared and unrealistic about death, and it's unfair for them to leave their kids in a position to fight over their things."

Potential fights are everywhere, Kotzer warns.

"One word can destroy an entire family," he said. "A word like antique, for example. One mother said, 'All the antiques go to my daughter.' But what's an antique? The son said anything from after 1960 is not an antique, and they fought about it all the way into the courts."

Kotzer said parents who wish to avoid such disputes should have lawyers draft their wills, openly discuss the issues with all heirs present and never assume that siblings will treat one another fairly.

"Trillions of dollars are about to flow to the baby-boomer generation, and lots of us are waiting to fight for it tooth and nail," he said.

Money isn't the biggest problem, however, said Richard Vincent, a Denver lawyer who specializes in elder law.

"The biggest fights we ever see are over personal property," he said. "Not cash, not real estate, but pictures and silverware."

Vincent advises parents to allocate as many such items as possible in a personal-property memorandum, a formal appendix to a will. Since it's impossible for most people to list everything they own, he suggests having the heirs draw straws for first pick and choose the remaining items by turn. If parents suspect there's going to be a fight, the final option is to instruct the executor to sell all personal property and divide the proceeds among the heirs.

When parents don't take responsibility for their estates, it puts the eventual heirs in a tough spot, notes Denver trust and estate attorney Mark Masters.

"An estate plan has been successful if all the kids are still friends at the end of the process," Masters said. "Parents should want that for their children, so they need to act like parents one last time to head off squabbles." If everyone were willing to accept their mortality, however, more adults would have wills. Many elderly parents have neither the desire nor the strength to organize their affairs.

In such cases, Masters suggests children exert gentle pressure.

"If the parents don't arrange things, the children have to tread very carefully," he said. "No one wants to look like a vulture."

To avoid the appearance that one heir is acting behind the backs of the others, all heirs should agree on an approach.

"Proceed with polite, patient persistence and allow your parents to save face. Tell them: 'We don't want your money, but we need to know that everything's taken care of, and we're going to pester you until we know that the loose ends are tied up, even if it means that we take you to the lawyer and the financial planner ourselves. We need to do this for the peace of mind of everyone in the family.' "

Although it's much more difficult if parents don't prepare, says Masters, with the proper attitude it's possible for families to come through the process on speaking terms.

"Inheriting is a real test of character," Masters said. "All the worst emotions come forward: greed, insecurity, a lingering sense that Mom always loved your brother best. As Mark Twain said, 'You never really know a man until you divide an estate with him.' "