The Christian Science Monitor

Planning Can Defuse Fights Over Estates

By Marilyn Gardner
Staff writer of The Christian Science Monitor

When the conversation turns to estate planning, lawyer Les Kotzer can tell stories. Horror stories, he calls them – all true, and most of them avoidable if families had talked more openly.

In one case, two siblings fought over a silver cup after their father died. The ensuing bitterness split the family.

On another occasion, a woman came into Mr. Kotzer's office with a crystal figurine she had given to her mother. Because her mother mistakenly bequeathed it to someone else, the daughter smashed it in Kotzer's presence. If she couldn't have it, she said, no one would.

In a third case, two brothers were arguing in his boardroom over a provision in their father's will. One took a heavy book off Kotzer's desk and threw it, missing his brother but knocking a painting off the wall.

"These were once kids who were probably singing in the back seat of the station wagon on the way to the Grand Canyon with Mom and Dad," Kotzer says. "They weren't born to hate each other. They grew up in the same home. They should be guardians of each other."

To help families deal amicably with inheritances, Kotzer and fellow attorney Barry Fish have written "The Family Fight: Planning to Avoid It" (Continental Atlantic Publications, $19.95). They note that relatives fight not just over money but over memories, possessions, and slights, real or perceived.

Kotzer measures the depth of the problem in part by the response he draws during radio and TV appearances. On one TV call-in show, 65 people waited on hold, wanting to talk about their family's estate fights.

Estate planning has gained new attention lately in the wake of headlines detailing the feud Ted Williams's children are waging over his last wishes.

In addition, Kotzer says, the Sept. 11 tragedy "woke people up to the reality that we're not here forever." Some parents and children now find it easier to talk openly and plan for the future.

Even so, less than half of Americans have a will, increasing the chances of acrimony. And if a will is not carefully written, relatives can still feud.

That's a problem, says Kotzer, for baby boomers expecting to inherit their parents' estates.He watches some clients in that generation drive into his parking lot in a beautiful car and concede, "Yeah, the bank owns it." Others arrive wearing expensive clothing.

"Even though they appear to have wealth, a lot of them are really depending on their parents' money," Kotzer says.

For benefactors and beneficiaries alike, the question "What is fair?" remains central. Sometimes, in an effort to divide assets fairly among children, parents create what Kotzer calls "inadvertent inequality."

If a father has a coin collection or baseball-card collection that was appraised in 1990 for $5,000, for example, he might leave that to his son and leave $5,000 in cash to his daughter. A decade later, the card collection might be worth $20,000. Yet unless dad updates his will, the daughter will still receive only $5,000. Land and family businesses can also increase exponentially in value, Kotzer says.

Second marriages create some of the most difficult issues in estate planning. Kotzer tells of one man who left everything outright to his second wife, expecting her to pass along various assets to his son. The stepmother told the son, "Don't worry, I love you like my own son. Dad always wanted you to be protected." But she bequeathed everything to her own children. The husband's son did not receive even family heirlooms and photo albums.

After a remarriage, Kotzer says, consider setting up a trust for a second spouse.

Other factors also create special circumstances and potential disagreements in dividing assets.

In families where an adult child has spent years caring for a parent, sometimes giving up a career to do so, the parent might want to express appreciation with a monetary gift. "Explain to the other kids, 'Jane lived with me. She deserves more.' The caregiver might say, 'Mom, I don't want any more,' but at least the offer prevents her from feeling slighted."

Also, if parents spent $50,000 on one child's college education, it might be appropriate to increase the amount they leave to their other children.

If one child is irresponsible or has an addiction that could drain an inheritance, parents might be tempted to leave him or her nothing. Kotzer urges people to weigh that decision carefully and to speak to other children about it: "I'm thinking about cutting John out of the will. What do you think of that?"

A sibling might say, "Don't do it. I have to live with him after you're gone. Let him feel he's been treated fairly."

An option is to set up a trust for that child. The money can be invested and managed, with the provision that another person can get money from the trust for the child's care.

In cases like these, it can be valuable to leave a letter or videotape to heirs, explaining why a certain provision was made. A videotape is not a will, but it offers a way to make wishes clear.

Kotzer warns against do-it-yourself wills, calling them "recipes for disaster." Even though these simple forms may be valid, imprecise language can cause confusion.

One woman wrote in her will, "I leave my antiques to my daughter. I leave everything else to my son." But "antiques" is not an easy word to define. Is her 1960 clock an antique? Her heirs disagreed.

Similarly, another woman left her "personal monies" to her siblings and everything else to her husband. That set off an expensive legal battle. A court determined that personal monies referred only to her bank accounts.

All this acrimony saddens Kotzer, who comes from a close family. "Mom never favored me or my brother, and there was never secrecy," he says.

Yet many parents have a hard time talking to their adult children about estates. They think: "It'll all work out after we go." Children are equally unsure how to broach the subject. They fear parents will assume they're simply after money.

"Secrecy is not golden when it comes to estate work," Kotzer says. "You should be talking to your children about why you are leaving more to one than the other, if that's the case, so there are no surprises when a parent dies." That does not mean parents must tell children now how much they own and what their estate is worth.

Kotzer also pleads for order. Sometimes clients come into his office with a bag filled with financial records. They dump it on his desk and ask, "OK, where do we start?" This can create confusion and suspicion, producing rifts if heirs think one sibling, perhaps the executor, is withholding information about assets.

Many of the family feuds Kotzer sees will never go to court. Although they are settled, they leave bitter memories that can last for years.

To avoid this, he suggests gathering the family together, perhaps at Thanksgiving, and telling children how important it is that they don't fight over the estate. "A parent could say, 'I love you all, you're all equal to me. John and Mary, is there anything in the house you'd like someday? If you bought anything for me, tell me. I want you to have it back.' "

Alternatively, adult children can broach the subject by telling parents, "We need to talk. Don't make an island out of us. We want to be close."

Look around that table, Kotzer says. "Look at your children laughing with each other. Can you imagine in 20 years those children not talking to each other? You don't want to leave a legacy of hate with your children.

"You've got to plan," he continues. "By leaving a voice, you can protect your family. That can be your legacy to your kids – not creating fighting among the children."

• 'The Family Fight' is available by calling 1-877-439-3999 or at www.familyfight.com.