Writing a will without triggering fights

Experts list useful ways to make writing a will easier for you

Creating an estate plan is a gift to the people you leave behind. By expressing your wishes, you’re trying to guide your loved ones at a difficult, emotional time. All too often, though, well-meaning people do things destined to create discord, rancour and resentment among their heirs. What looks good on paper may play out disastrously in real life, says estate and trust attorney Marve Ann Alaimo, partner at Porter Wright Morris & Arthur. “People want to think everybody will be nice and do what’s right,” Alaimo says. “Human nature is not always that way.” You can reduce the chances of family discord by doing these four things:

NAME THE RIGHT EXECUTOR

People often name executors based on family hierarchy (the oldest child, the only male) or personal relationships (the spouse, the best friend), rather than considering the skills needed for the job, estate planning attorneys say. The person tasked with settling an estate should be responsible, organised and scrupulously ethical. Estate planning attorney Jennifer Sawday often recommends that clients consider appointing a corporate trustee or a professional fiduciary as their executor. Many banks have trust departments that provide trustees for larger estates, while professional fiduciaries often serve smaller estates, she says.

INCLUDE PERSONAL PROPERTY

Some of the littlest things — a childhood toy, a holiday decoration, a piece of costume jewellery — can trigger the biggest family fights. Anything with sentimental or emotional attachments can stir up old rivalries and lead to lifelong rifts. “It can be ‘Mom always wanted me to have that’ or ‘Mom always wanted you to have that, and it bugs the heck out of me,’” says Alaimo, who recommends clients ask their kids what they want and make decisions now about who gets what. They should make a list, update it as needed and keep it with their wills or other estate documents. If people avoid this discussion because they’re afraid of conflict, they should imagine the battles to come when the parents are no longer around to mediate,” she says. As a final bid to keep the peace, or at least remind kids to value relationships over things, Alaimo suggests adding a clause to the will that directs the executor to sell any disputed item if the heirs can’t agree upon who gets it.

DON’T TIE UP THE MONEY FOR TOO LONG

People can, and should, make sure their surviving spouses are adequately provided for. It’s also unwise to dump a large amount of money on someone too young. But estate provisions that tie money up for decades may also be a mistake. For example, people with larger estates often create trusts that allow the children to inherit only after the surviving spouse dies. But if a person’s new wife is closer to the kids’ age than his own, that could be a long, resentment-filled wait. Another common estate provision is to dole inheritance out over several years, for example with a chunk at 21 and another at 25, with the balance paid out at 30. But some people use such provisions to drag the distribution out over decades or try to restrict what middleage children do with the money. “Children often find these provisions to be an indictment by the parents and a statement that they do not trust them with their inheritance,” says Frank Moscardini Jr., a partner at Shimanovsky & Moscardini.

EXPLAIN ANY UNEQUAL BEQUESTS

Parents usually think they have good reasons for leaving one child more than others. But unequal bequests often feel unfair to those left behind, Moscardini says. Alaimo says that parents who aren’t planning to make equal distributions should schedule a family meeting and explain their thinking to their kids. Those discussions may not be comfortable, but hearing the explanations directly from the parents can help keep the kids from blaming one another later. “If you’re not there to answer their questions about ‘why did you do it that way,’ people will make up their own answers,” says Alaimo.

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