TIME Magazine

Who Gets the Stuff?
Even when there's a will, the heirs may squabble over the estate. A few simple steps ahead of time can head off conflict

By Sally S. Stich

The best estate-planning advice Harry Leiser ever got came from his rabbi. "He had seen too many families fight over estates after the death of the parents," says Leiser, 56, a New London, Conn., commercial — real estate owner. "He suggested two things: treat each child equally, and don't rule from the grave."

Leiser, the father of two grown sons — one a law student, the other a teacher — took the advice to heart. "Family harmony was my motivation," he says, "and I divided my primary assets equally between my sons — with no strings attached — even though one has much greater earning potential than the other." Moreover, Leiser told his sons what they could expect so that any potential conflict could be dealt with before his death.

Estate planners would applaud Leiser and his rabbi. "Too many people think of estate planning in terms of preserving their assets," says estate attorney Les Kotzer of Toronto. "They should instead be focused on preserving the family." Like many other estate attorneys, Kotzer, co-author of The Family Fight: Planning to Avoid It, has seen his share of family squabbles because of something parents did — or didn't — do in their will.

There's no question that the problem of family disharmony is on the rise, says Dennis Belcher, chairman of the Real Property, Probate and Trust Law section of the American Bar Association (A.B.A.). There's more wealth than ever, and family relationships are more complicated as a result of the high number of remarriages and blended families. Making matters worse, among Americans 50 and older, only 17% have a will, a durable power of attorney and a living trust, according to the AARP. But even when parents have taken care of business, the potential for bad feeling runs high. "Parents tend to keep finances and plans a secret from the kids," says Sanford J. Schlesinger, chairman of the wills-and-estates practice at the firm Kaye Scholer L.L.P. in New York City, "and then the kids are shocked to find out what they perceive to be their parents' 'real' feelings about them."

It's not that parents deliberately make bad choices, says estate lawyer Colleen Barney, co-author of Best Intentions: Ensuring Your Estate Plan Delivers Both Wealth and Wisdom. Rather they operate under dubious assumptions, as Elizabeth Shen, 66, a widow and mother of six in Arcadia, Calif., did when she approached Barney about estate planning. She had decided to appoint her eldest son and daughter co-executors, without telling them first. Barney suggested that she invite all six kids to the planning meeting. When the topic came up, Shen's eldest daughter, who travels a lot, didn't want the responsibility. Says Shen: "But it opened the door to a discussion among all six, who unanimously agreed their oldest brother was the most capable for the job."

If told ahead of time, children can also reverse parents' decisions about the distribution of assets. As Bernie Walsh, 70, a retired insurance salesman in Tustin, Calif., sat in his lawyer's office with his wife Antoinette and three of his four children, he asked the children how they would feel if he left nothing to their sister (the one not present), with whom he had had a long-standing problem. The three siblings jumped to their sister's defense. "The four kids are all close to one another," says Antoinette, 64, "and they wanted their sister to have her fair share."

"Parents tend to forget that kids equate the equality of the inheritance with the equality of their parents' love," says psychologist Eileen Gallo, vice chair of the A.B.A. Committee on the Psychological and Emotional Issues of Estate Planning. "Parents may have good reasons for leaving unequal amounts — for example, a child who has given up a career in order to care for ill or aging parents might get more. But without discussing it with the children, parents are setting up the possibility for resentment."

The biggest family feuds, regardless of the size of the estate, are over personal property. "Many parents, in an effort to avoid conflict — or simply because it's so much work — take a 'Let them work it out after we're dead' approach," say Joanna Reiver, an estate attorney in Wilmington, Del. Since there's an emotional value to family belongings that supersedes money, that can be a serious mistake. Jerry Wolf, an attorney in Fort Lauderdale, Fla., recalls a case of his in which two siblings fought over their mother's jewelry. "The legal fees topped $70,000 for something that was worth less than half that amount," he says.

Researcher Marlene Stum, associate professor of family social science at the University of Minnesota, has developed educational resources to help family members make more informed decisions about the transfer of nontitled property. Possible solutions include adding a page to the will that spells out who gets what or, on a more informal basis, letting kids tag things while parents are still alive. At the very least, parents should provide guidance. After hearing about a workshop based on Stum's research, Shirley Stelter, 68, of Moorhead, Minn., decided to tackle the issue with her four children. "I took photos of everything and sent them to the kids and asked about each item: 'Would you be interested in this?' " For anything that more than one of them wanted, Stelter and her husband Willis laid down a rule: draw straws or toss a coin. Son Jon, 45, an electrical engineer in Minneapolis, thinks his parents' plan is fair. Still, much as he appreciates his mother's foresight, he admits he didn't look at the photos for several weeks. "My first reaction was 'I don't want to think about my parents' death,'" he says.