I cannot emphasize this enough – it is essential that every adult prepare an estate plan. Regardless of how old you are, your marital status, or how much money you have, having a Will, advanced directives such as powers of attorney, and perhaps a trust or other plan, is important.
Nearly 70% of Americans do not have an estate plan of any kind. Many people don’t even know if their parents have a will, and for those who do know, many don’t know what’s in it. It seems logical that anyone who has worked hard to establish themselves financially would plan to leave an inheritance for their children or family. But, without an estate plan, the costs of administrating even a small estate can eat up ten to fifteen percent of the total.
Estate planning does away with all the uncertainty. You will have assurance that there are legally enforceable documents that will safeguard your wishes after you die. The stability of the power of this enforcement will prevent family conflict over your estate. It will allow you to pass a legacy to your children and make and enforce the choices that are right for you.
With families gathering in December for the holidays, it might be a good time to talk about these concepts with your loved ones.
But how should you approach this subject during your family holiday gatherings?
I suppose it could be argued that bringing up the concept of death and the parceling out of family assets might really bring down the mood at Christmas dinner. But the problem in most families is this subject is taboo – no one wants to ever discuss it at all. Having the right family members together might be the perfect time to start.
If you don’t yet have an estate plan, but are considering it, the family will benefit from the discussion. There needs to be an opportunity for everyone to be honest and express their feelings. The relevant concepts that go into estate planning need to be open to conversation. It’s good for the person who will be drafting a will or trust to address the people who they will name as executors, trustees, guardians, or agents to ask them if they are willing to serve and talk about what that might entail. I feel it is generally good for the “younger generation” to grasp what their parents are doing. Just having the discussion might inspire others to put a plan together as well, bringing even more stability to the extended family.
If you already have an estate plan, share the details and discuss it openly with the specific persons involved (i.e., the people you’ve named in your plan as trustees, executors, agents, etc.), as well as the family at large. If your family knows what your wishes are in advance because you talked to them about it, it is more likely that those same wishes as stated in your will or trust will be met.
This discussion should not only inform the family that an estate plan exists, but how to find it in the “hour of need.” The person who is your successor trustee or executor of your Will should have photocopies of the documents and know where to retrieve the originals. This also should include any separate written instructions for the disposition of tangible personal property to specific people (all the revocable trusts I draft contain a provision for this). They also need the information about where you might be storing valuables (i.e., a safe, safe deposit box, storage unit, or “hiding place” within the home).
You also must let trusted family members know who is named as your agent under the powers of attorney, where files can be located that contain information relating to your bank accounts, investments, debts, insurance policies, and any specific information that is particularly important to you (such as documentation relating to you being an organ donor, or your established wishes for funeral arrangements). If the parts of your estate plan that express your wishes can’t be found, they will have no use.
As stated, conversations about estate planning are difficult. One way to avoid bringing down all the holiday cheer is to consider establishing ahead of time that you will discuss estate planning. This allows your family to prepare themselves in advance. There will invariably be a level of discomfort. I encourage my clients who discuss their estate plans with their family to be as understanding as possible. Some will have questions. Everyone will have an opinion. There may be a lot of emotion. Some might get angry or be hurt over perceptions that things aren’t fair. Some might just not be able to handle the discussion about death. But if you guide the discussion back to the need to make sure there is a need for a plan that will carry out your wishes to avoid as much outside interference as possible, a lot of the shock, emotion, and denial can be softened.
Of course, every family is unique. In situations where siblings all basically get along, and the parental plan is to eventually pass the estate on to all the children in equal shares, the discussion may not spark much controversy. But in instances where there are unique circumstances – i.e., children who are spendthrifts, have addiction problems, or have alienated the family –discussions must be approached more carefully. The audience for your conversation may not be the entire family. Choosing to have multiple conversations with groups of family members might help. There may be a perceived need to make sure your out-of-town-family members who you rarely see are informed. Careful discretion is advised. In an age where the pandemic has taught us how to meet remotely, opening the door to conversation to continue later via telephone, video chat, or even a Zoom meeting with multiple family members all involved is a way to avoid open controversy while opening presents around the Christmas Tree.
Having estate planning conversations with your family is inherently difficult. But its extremely important. If these conversations can be started in the context of your holiday gatherings, I recommend it. Even if you just open the door. Understanding and communication in this area is vital to family harmony and the efficient administration of any estate plan.