People have told me they do not have enough money to bother doing a Will. It is not always about the money, however. Mickey Rooney, though he was the highest paid actor 70 years ago and had a legendary career, died with only $18,000 in his estate just recently at the age of 93.
His story is a lesson in the hard truth that people will fight even when there is little to be gained from fighting. The details of his story are included in a link at the end of this article.
In the short period of time that I practiced family law (think divorce), some of the nastiest, most difficult cases were marriages with little money or assets to fight over. Unfortunately, the death of a loved one can be like a divorce. It often brings out the worst in people, dredging up hard feelings from the deep well of long ago – sibling rivalries, family jealousies and slights that have never been forgotten.
One of the worst probate estates I handled, in terms of the vitriol and emotion, began with the whole family in my office after mom died unexpectedly. They told me they were a close a family and would be agreeable on everything. It did not turn out that way. The skeletons in the closet have a way of creeping out from their hiding places. As an attorney, I often do not know the whole story (sometimes people even have a hard time explaining it), but the fruit of the poison seeds that germinated years gone by often becomes evident.
The time to nip those seeds in the bud is when they start, but that is a topic for a pastor or counselor to address.
When doing estate planning, it is wise to take an inventory of the family dynamics. Consider what shadows lurk in the family relationships that you might be able to head off with some thoughtful planning. If there is a child in the family who is a bully or stubborn or mean-spirited or struggling financially, do not put that child in charge. It can mean trouble for the rest of the family. Maybe you should consider a neutral party to be in charge (to be the executor, the trustee or the power of attorney agent). An objective third party will not be affected by the old family dynamics and rekindled emotions that might come bubbling up when you pass and can stay focused on your wishes expressed in your documents.
In most cases, treating your children equally by distributing your estate in equal shares is the right thing to do. If you are going to make the distribution unequal, a little explanation can help. Offsetting a distribution for loans/gifts made during life is understandable. Compensating one child who constantly was there for you when you needed it, is also understandable. Be careful, however, with the explanation, as it can itself be the ground for argument. Above all, be clear in your direction and put a person in charge of carrying out your wishes who you trust the most and who will not be affected (or participate) in the negative family dynamic (if there is one).
In the end, you may not be able to head off every argument or deflate the tensions that may arise from the ground laid in years past. Each of us, and our children, all make our own decisions, and we all “own” the way we respond to the situations in our lives. When doing estate planning, however, it is not just about the money or the assets you leave; it is also about the emotions and the legacy. If there is something you can do today that will leave a better legacy and heal any wounds from the past, consider how you can protect a good legacy and heal, or at least ameliorate, those hard feelings as part of your estate planning.
Now for an interesting, albeit sad read: here is an update on the Mickey Rooney story.
With Not Much in Mickey Rooney's Estate, Fight Possible Over His Remains by Alan Duke for CNN Entertainment April 9, 2014