The Salt Lake Tribune

Instructions on 'who gets what' can head off sibling fights

Kathy Gurchiek
The Salt Lake Tribune

The e-mail from the woman beseeching the lawyer for advice was plaintive, the situation sad.

Her mother died of colon cancer without updating the will she had written five years earlier. She left behind a wealth of jewelry to the married daughter -- none to her two sons, two daughters-in-law or two young granddaughters from her sons' marriages. The brothers are mad, writing nasty e-mails demanding that their sister divide the jewelry with them, otherwise they want financial compensation from their father.

"My mother's friends were witness many times to my mother saying she wanted me to have her jewelry," the daughter wrote to attorney Barry Fish, signing her e-mail only as JM. The daughter gave some jewelry of lesser value to nieces and sisters-in-law and in her own will plans to divide any remaining heirloom jewelry among her daughters and nieces.

"My mother always said that my sisters-in-law had their own mothers to inherit jewelry from and that I only had her. I am so confused. Can anyone help?"

Welcome to a world where families often are torn apart when a well-meaning parent assumes that his or her grown children will play nice when it comes to who gets what in a parent's last will. The parent may unwittingly sow the seeds for a fight that can destroy the family.

"Parents have this view because their children are their children, they won't fight," said Les Kotzer, attorney and co-author with Barry Fish of The Family Fight: Planning to Avoid It. He has seen brothers and sisters at each other's throats, family relationships ripped to shreds along with the family photos.

"Don't assume good will between your children," he advised, and don't rely on them to fairly distribute the assets.

"If you were to say 'I'm going to leave it all to [my son] Billy and he'll look after [his sister] Mary,' what if Billy dies. Will Billy's wife have good will toward her sister-in-law?" Perhaps Billy has financial problems and opts not to help his sister, whom he believes will squander money that he could use to pay debts, Kotzer said.

"Kids are elastic," said Kaysville attorney Trent D. Nelson, who specializes in family wills and trusts. "They're always changing. You don't know what financial consequences they're going to run into in their lives."

Math and emotion: A parent may try to be fair by splitting things evenly, using mathematics instead of emotion to distribute money, mementos and other assets. However, if one child is the caregiver, emptying bedpans and chauffeuring the parent to doctor appointments and the other children are rarely around, the result is inadvertent inequality, Kotzer said. In the case of the caregiver, he recommends telling family members that the caregiver is receiving a little more as a show of appreciation.

"Being equal is not always fair," Kotzer said. "The phrase 'they'll work it out' really shouldn't be in a parent's vocabulary when it comes to estate planning. This is a very poor way of thinking" because lawyers, not family members, will be forced to work it out, he said.

Consider whether you should split things evenly even though you already helped one adult child financially -- with college, with a down payment for a house, with free room and board -- and not the others. That can create bitterness among siblings. Parents and adult children need to talk, Kotzer said. The discussion doesn't have to take a "gimme" tone; instead, focus on the importance of having an up-to-date will.

Discussion also can be prompted by asking the parent if he or she has established a power of attorney in case of a debilitating illness, Kotzer said. That choice should be discussed; an adult child may not want sole responsibility and does not have to accept the appointment.

Leaving instructions: Most people think only the rich need a will, Kotzer said, but it is important to designate how any assets and sentimental items are distributed. He told of a mother who thought she was avoiding a family fight by designating that all her personal possessions were to be sold within 30 days of her death and the money divided among her children.

The woman's daughter wanted a crystal vase that she had taken great pains to buy for her mother, but her brothers, as executors, were following their mother's will to the letter. Furious, the daughter removed the vase from her mother's house and smashed it in the parking lot as Kotzer, who was handling the estate, watched.

"'Now nobody can have it,'" Kotzer quoted her as saying. "You could sense the hatred that was starting [because] her brothers wouldn't give it to her," he said, noting that "a will . . . is written in stone, so you better get it right and better put some thought to the wording in that will."

The vase incident could have been avoided if the parent had talked to her children about her plans, asking if there were specific items that they wanted that would be excluded from an estate sale.

The parent should also consider how disinheriting a family member will affect that person's relationship with the rest of the children, because they are the ones who will have to deal with any emotional fallout.

Carefully weigh who to appoint as executor.

"Sometimes they pick the person who has the most street smarts, sometimes they pick the person who has the most legal experience or the most business experience," said Nelson. "That might be the worst person to choose if the person . . . is least trusted."

Logistical planning: Consider, too, where that person lives. If the child you most trust to be the executor lives in a distant state, it is not going to work if there is a complicated estate that is going to take several months to administer, he said.

This causes logistical problems and can place a financial burden and stress on the executor who has to take time from work to travel to handle the estate. That person also is entitled to reimbursement for expenses, so travel expenses may eat up the estate, Nelson pointed out. While executors are entitled by law to fair and reasonable compensation, many waive payment. That often helps build credibility in families where someone doesn't trust the executor.

Also, rethink appointing a daughter- or son-in-law as backup executor, Kotzer cautioned. A child's marriage may not be permanent and an ex-family member could end up overseeing the will. Nelson also advised not having co-executors, which require both parties to agree on everything that comes up.

Many fights are over small things that never go to court, such as who pays the freight on a piano that was left to a relative who lives across the country, Kotzer said. He recommends an explanatory letter or videotape that supplements the will, specifying why certain items go to certain people.

"[An explanatory letter] takes a lot of the burden from the child who gets [the item]," Kotzer said.

Personal property lists: In Utah, a personal property list that outlines specific bequests may supplement a will or trust. The list must be referenced in the will and cannot include bequests of money, stocks or real property, such as a cabin. Include enough detail -- such as "grandmother's diamond engagement ring" -- so it is clear which item is being given to whom.

"A personal property list can say 'I want this antique sewing machine to go to Joanne,' " said Nelson. "It's not like a will where you have to redo it . . . you can update that without having to go through an attorney."

Nelson emphasized the importance of considering potential land mines when writing a will and how to deal with them.

"You almost have to consider worse-case scenario," he said. Consider giving the executor the discretion to sell an item if an argument ensures over who is entitled to a particular possession.

"If you know everybody loves your spoon set that came over from Norway, consider who you want that to go to. It's going to be a lot easier for them to accept a decision that Mom made versus a decision that the [executor] made. If you anticipate problems . . . over specific items, be very clear about it."

An attempt to avoid tax liabilities can also sow the seeds of a family fight, as happened when a parent stipulated in his homemade will that one son inherited a bowling alley. Everything else, including property the bowling alley sat on, went to other siblings. They became their brother's landlords, and urged on by their spouses, raised the rent where their brother lived and created a family rift.

Expectations: Kotzer also is seeing more adult children who feel entitled to the fruits of their Depression-era parents' scrimping.

"That generation was a saving generation. They were the coupon cutters. They would keep the same car for many years, whereas my generation are sort of the spenders. We grew up in the '70s and we have to have the latest technology, the latest fad. Our parents were always the ones saying 'save your money, wait for a rainy day,' " he said.

Kotzer recalled one client who arrived at his office driving an expensive car, wearing designer clothing and a Rolex watch. The client had lost everything in the dot-com crash; he was now a "waiter" but Kotzer was puzzled. How could he afford such a wealthy lifestyle if he was waiting tables? Turns out he was waiting to inherit his parents' assets.

"There is an assumption out there that what was your parents will be yours, and will be yours equally with your siblings. This is where the problem comes in," Kotzer said. Things turn ugly when an adult child doesn't receive what he or she expected. That problem can be avoided by being up-front with the children so there are no presumptions.

Remarriages also can pose problems for parents who intend to leave their children everything, but "everything" -- home, bank account, insurance and pension -- is jointly owned by the surviving spouse. Those partners receive a windfall because the deceased spouse didn't understand that everything that is jointly owned goes to the surviving spouse, regardless of the will, Kotzer said. If that new spouse later dies without updating his or her own will, family possessions intended for one set of children instead are passed onto the new spouse's children.

Parents should be aware, too, of the consequences of holding a joint bank account with an adult child. Often this is done because it allows the child to conduct bank business on the parent's behalf. When the parent dies, that child receives everything in the account.

The potential for warfare over a will can affect any family. Multimillions do not have to be at stake. Nelson recalled three sisters who fought for more than a year over the small estate of their father, who died without a will.

"They never mourned the passing of their father. They got so caught up with fighting with each other that they forgot that they lost their father," he said.

"The average family doesn't understand how close to the line they are. It doesn't take much for the family to be destroyed," Kotzer said.

"Just be organized," Nelson said. "Doing nothing is the best way to have problems."