During the past approximately 30 years during which I have been practicing law, I have seen a number of situations where families have had various conflicts among themselves after their parents pass away. There appear to be a number of reasons for these family conflicts. A number of times the reasons are one or more of the following:
*The parents did not properly execute powers of attorney for healthcare and powers of attorney for property so that the children could determine who had authority to make health care and financial decisions;
*The parents did not properly title their assets in accordance with their wishes in their will or trust;
*The family simply does not communicate.
The following are a few ideas that individuals should try to accomplish during their lives as it relates to their estate planning in order to alleviate family conflicts after death:
1. Determine your exact wishes as it relates to the following documents:
- Power of Attorney for Healthcare – This document allows you to name an individual or individuals in your family who are able to make healthcare decisions for you if you are not able to make them for yourself.
- Power of Attorney for Financial Affairs – This document allows you to name those individuals who are able to help with your financial matters during your life. A lot of times individuals will name a child as a co-owner on a bank account. This allows that child to write checks to pay bills while the parent is living but also allows the co-owner child to receive all of the assets remaining in that account when the parent passes away. This is a situation that is becoming all too common. In some cases, parents do want that child who is on the Power of Attorney for Financial Affairs to actually inherit those assets when they pass away; however, in other circumstances, the parent simply wants that child to be able to write check and not inherit all of those assets in the account when they pass away. This, of course, creates family conflict. Therefore, unless you want that child to receive the funds in that account, after your death, do not name children as co-owners on bank accounts for the purpose of simply being able to write checks. Simply execute a Financial Power of Attorney and that document will allow the child to write checks to pay your bills.
- Will and Trust – Specifically clarify your wishes in your Will and Trust. These are the documents that determine who will administer your estate, and who will be the beneficiaries of your estate after you pass away. These are very critical, and it is always my suggestion to my clients to be as specific as possible so that there is no confusion as it relates to your wishes.
2. It has also been my perception that when parents communicate with their children regarding their wishes about all of the above items, there is less likelihood of family conflict when issues arise during the parents’ lifetime or after they pass away.
3. Finally, it is critical that you not only execute all of the above-referenced documents, but that you also go through asset by asset and title the documents and name the beneficiaries of these various assets in exact accordance with what your estate planning documents say, and your wishes are. For example, if you have two children, and you want both of those children to inherit your assets equally, then do not name one child as a beneficiary on an account or name one child as a co-owner on an account to the exclusion of the other child. As mentioned above, when you do that, only one child will inherit the assets in that account. Name both of the children as either co-owners or beneficiaries.
Please take these steps and contact your local estate planning attorney to make sure that you discuss and determine all of the issues surrounding these various documents and then communicate these wishes to your family so as to avoid family conflict in the future.
Note: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.
James F. Contini II, Esq.
Certified Specialist in Estate Planning, Trust & Probate Law by the OSBA
Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.
405 Chauncey Avenue NW
New Philadelphia, OH 44663