Sometimes the family dynamics in handling an
estate or trust, can feel a little like a refurbishment project gone
awry, or one of those three-legged races with your ankles tied to
those pesky siblings (and their spouses).
What takes only a day to demolish, takes many, many more days to rebuild.
Some families just seem to dig in and
deal with the hard work. They discuss how to take turns or share the
burden of care between each other. They listen to each other and seek advice; not to trip up
each other, but to take care of the needs of an aging family member
and protect or preserve assets.
Other families seem more inclined to
focus on courtroom drama or constant pushing to prove they are “right”. Don't get
me wrong, just as demolition is needed to do a complete refurbishment,
there are times when the courts are needed to intervene. For
instance, when an elderly family member is being taken advantage of
or a beneficiary has not received appropriate and timely information.
Or when someone has taken assets that do not belong to them. Even sometimes just to gain clarity about a decision.
When your family is facing eroding trust
in each other don't be the one to light the dynamite. The way we interact with family can often use some extra sweetness or re-reading Dale Carnegie's books. When family issues and money issues overlap in the estate arena, it often takes more pre-thinking to avoid demolition of the family.
Below you'll find a few “refurbishment” tips
to help keep your family looking towards positive options that can
lessen stress and court room drama (which can cost the estate
hundreds of thousands of dollars).
* The right choice of trustee is better
insurance against litigation than a “no-contest” clause. Many
people believe that they have fool-proofed their estate against unwarranted litigation costs with
the “no-contest” clause. The rights of beneficiaries and reasons
for them to bring valid litigation to secure these rights have been
expanding. A “no-contest” clause is like a lock on a door, it
only keeps out the honest people. Those who have an ax to grind will
do so at the risk of their inheritance, even when it seems somewhat irrational.
* Don't try to be “fair” and name
all your beneficiaries as co-trustees. In the long run, naming co-trustees usually creates
more opportunity for stalemate and conflict. If the kids or
beneficiaries already get along, they will probably think it is fine
for one of them to act as trustee alone. If they don't get along,
making them co-trustees will send them into court much more quickly.
One recent case is an example of the difficulty this causes. All
beneficiaries were also named as co-trustees. They could agree on
very little. After months of court room drama, they agreed in a
court-ordered mediation session that one neutral fiduciary would be a
better choice. Before they agreed to a neutral fiduciary, they had
incurred the cost of five competent attorneys. These costs would be
paid from mom's assets.
* If you are having trouble discussing
options with an elderly loved one, call in a Family
Council Moderator. Unlike mediation, which is most often used when
people have already taken sides and declared “war”, a person trained in the arena
of elder needs and estates can often facilitate a “family”
conversation towards decisions about the needs of a frail elderly person. This type of
discussion is offered to provide a structure and place to hear and share. Group discussion rules, identifying roles, brainstorming solutions and assigning chores can really help a family collaborate. It is the long, hard,
but often rewarding work of “refurbishment” which can give a family new decision making tools and maybe a bit less stress at family gatherings.
* Realize decisions made today will need to be revisited in the blink of an eye for the frail, ill or elderly. There are multiple, recurring, decisions and
transitions in the aging process. This means the family
decision making process will be taken out like an old family quilt to be used over and over. What is your family's style of decision making? Is it functional or dysfunctional? Does it need refurbishing?
Even as this generation of aging adults are more active and independent than in the past, there is still a point at which the life of the elder becomes more interdependent with family or a circle of care. This can give a
new depth and beauty to family and friendships. If no family is nearby or able
to walk alongside your or your clients, make sure they know about the
option of safe, simple, stewardship by a skilled professional
fiduciary.
