The holidays are a time when families come together to celebrate and to share in the warmth of the season. It is a time to spend with multiple generations and to toast to another year of health and happiness. While the holidays may not feel like the perfect time to bring up heavy topics such as planning for disability or death, this is the perfect time to do so because of the multiple generations of family members gathered together.
As fiduciary litigators, we are frequently asked about the trends we see or what types of issues drive probate disputes among family members. While our answers to these types of questions do frequently include complex tax calculations or the interpretation of an ambiguous trust or will provision, we can consistently attribute a significant portion of disputes to a general lack of communication.
This lack of communication does occur in the form of beneficiaries who feel that a trustee is not providing adequate information or accountings (more on that later). However, it also occurs when family members feel left in the dark regarding their loved one’s intentions in making certain estate planning decisions. Expanding the conversation about estate planning from spouses to siblings and younger generations early on in the process, therefore, may help to alleviate some of the confusion that frequently leads to disputes once a testator or settlor is gone.
Maintaining good communication will become increasingly important as we embark on an unprecedented transfer of wealth in the coming decades. As baby boomers prepare to transfer their own accumulated assets, they may be seeing significant inheritances themselves. The result, according to experts, is that anywhere from $27 to $40 trillion will change hands between now and 2050.
This is not a problem reserved solely for the wealthy, however. Discussing the succession plan for a small family business or a modest vacation home can help to avoid strain, confusion and tension among surviving family members. Furthermore, an issue that regularly arises in probate litigation is the division of personal property. Because items of personal property carry significant sentimental value, they can become the center of intense and protracted litigation. Conversations about these sentimental items ahead of time can greatly reduce the chances of disputes surrounding the ultimate distribution of such items later on.
Finally, the more a family member knows about an individual’s estate planning intentions, the more astute the family member will be to spot and respond to potential undue influence by a third party or risky changes in the testator’s or settlor’s capacity should these issues arise in the future.
So raise a glass this New Year’s to another year of health and happiness, and then gently let your family members know that you also want to chat about their estate plan and yours. You can let them know that it is for their own good.
… And just in case you are the trustee of a trust, it is equally important that you are providing sufficient information to any beneficiaries. The New Year can be a good time to conduct a simple annual assessment of the trust and to provide any necessary updates or reports to beneficiaries.