To Will or Trust?
“When I’m gone…”
Make this a conversation starter instead of a conversation stopper in your family.
It was Mother’s Day. Church and lunch were over, and we were down to the important things, like who wanted the Nutella topping warmed up to go over the brownie and ice cream dessert, and where to plant the geraniums, and just h
ow much it rained in the bottoms last night, when Dad looked across the table and said, “When I’m dead, you need to…” The air left the room. I suddenly, desperately needed a cup of coffee and headed into the kitchen. The youngest granddaughter in the room, said, “What?” The other family members around the table didn’t really know what to say.
Dad was right, families need to talk about “it”. But “it” can be so difficult that the conversation rarely happens. No matter what all the experts say.
I have been reading farm magazine articles, blog posts, law journal articles, and absorbing continuing legal education workshops and materials for years. They often stress how important it is to have “The Conversation.”
Sounds great on paper. Until the one talking is the patriarch of your family, the man who taught you how to ride a bike, clean out your pony’s hooves, count baby piglets silently in the farrowing house as they were born, work a clutch on the old tractor that was so stiff you had to practically stand on it, clean a scrapped shin with a shop rag that smelled like diesel, keep a baby rabbit or wild flowers alive in your lunch box until you got back to the house to show Mom, and get up the courage to go from the top rung of the grain bin ladder to the roof and sit awhile to look around until your knees stopped shaking. And a few hundred thousand other important things.
So what can you do to make things easier for your family? Here are some illustrations of what not to do:
A few times a year, I get a call from someone who is calling every attorney in the phone book trying to figure out if their mom or dad had a will. They have no idea if there was a will, who the family attorney was, or where the will was kept. Don’t make your children have to become detectives after you pass away. At the very minimum, tell them if you have a will or a trust, show them where the original is, and tell them who you would recommend to help with the administration of the estate.
At the beginning of each information gathering session for estate planning, I ask clients to tell me exactly how jointly held assets are owned, who the their beneficiaries are on their IRA’s and life insurance policies, and whether any of their bank accounts will pass automatically on their death. The standard answer is, “Well, I’m not really sure but I think it probably is….” That is a dangerous stance and can have some disastrous results. Take time to gather up copies of the deeds, account details, and signature cards. Make sure they say what you want them to say. You may be surprised at what you find. You may have left your life insurance to your oldest child years ago because the other children were minors, and you knew the oldest would take care of the younger ones—and now they have children or grandchildren of their own! Time flies!
Far too often, I hear clients describe the nightmare they lived through when they did not have an up to date power of attorney. Important medical decisions were delayed while they were unable to make the decision on their own. Do yourself a favor and make sure your Powers of Attorney for Health Care and Property name the people you trust as agents, define their powers clearly, and plan for the possibility that you will need someone to act as your agent before you die. And then, have a clear, frank discussion with your family about what you want them to do if they ever have to act as agent. The role of your agent is to do what you would have done. How will your future agent know if you have not discussed your wishes.
Have a dress rehearsal for if you lose your ability to make good decisions and one for when you die. Make sure everyone knows their role.
Early in my career, I heard a story from Bill Ridgeway about an older attorney who talked the other local attorneys into conducting a dry run of his funeral: casket, songs, eulogy and all! If my memory serves me, Bill sang “Peace in the Valley.” Maybe that is not such a bad concept. (Thinking about that eulogy down the road might help us make better choices at home and at work today.)
Show your family you really care. Sit down with them and talk it through. Address the Who, What, When, Where, Why, and How. Imagine all of the likely scenarios. Think about the stories you have heard in your community about things that did not go as your friend or neighbor had planned.
You can have this conversation as a family at home or with your attorney. It does not have to be fancy or expensive. But your family will be glad you did.
This conversation will go a long way toward preventing misunderstandings and injured feelings that could spawn expensive legal battles in probate court.
Think of the plan you have in place, whether simple or complex, as a vehicle to carry out your wishes when you are gone. You probably would not ignore a prized automobile in the garage for years and expect it to start up, run perfectly, and take you on a long, important journey. Take a look. Kick the tires. Start it up. Take it around the block. Make sure your plan will do what you want it to do when the time comes.
Your family will know you love them if they can finish the sentence that starts, “When I’m gone…”