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"Mom Always Liked You Best" How to Avoid Conflict when You Die or Become Incapacitated

In our practice, we often meet clients who are the adult children of parents whom have either passed away or have fallen ill and cannot manage their own care or finances.  Sometimes these clients are trying to manage their parents’ care and finances, as well as their own, and our firm has had a lot of experience guiding clients through this process.  We have found that, more often than not, these clients are fighting with their siblings over what the proper decisions are and who gets to make these decisions.

In the typical case, the parents have left a Will or a Trust naming once child executor or Trustee, and dividing their assets among their children.  The parents feel that they have prepared for their incapacity and/or demise and that by creating these estate planning and end-of-life documents they will be able to prevent their children from having to fight each other over these issues.

However, these well meaning intentions often backfire.  When a parent dies, emotions are high, and when assets are at stake (even relatively nominal assets), feelings of sibling rivalry inevitably emerge.  What can parents do to avoid future litigation among their children over their care and/or their assets?  Below are some guidelines to keep in mind and questions to ask yourself before meeting with an attorney to create estate planning and end of life documents:

1. Choose wisely.

Often times our clients arrive to an estate planning meeting not having thought it through thoroughly about who they would choose to make these end-of-life decisions for them.  When put on the spot, they often chose one child over the other because he’s the eldest or because she’s a woman or because you have always just liked that child best.  These are not good reasons.  Good questions to ask yourself include:  Which child most shares my attitudes and values? Has one child provided comfort and emotional support to me in the past and offered to help me in times of need?  Is the person I have chosen married?  Do they have children? Do they have a lifestyle or physical or psychological issues that might prevent them from being a good caretaker and/or manager of my finances? Are they geographically near my place of residence? Does this person have the financial resources to take time off from work and household duties to assist me if my resources are insufficient?  In essence, does the person I have chosen have the time, ability, energy or desire to devote to themselves to managing my or my spouse’s care and/or finances?

2. Be Fair

Although it is definitely your prerogative and right to leave your children any portion of your assets you choose, (including the choice to leave them nothing), leaving an estate that is unevenly distributed among your children is a recipe for future litigation among them.  Again, besides the disappointment you may feel imagining your children fighting over your care and/or assets, there is also a high cost to be paid for this litigation, with the funds for this litigation most likely coming from your own estate.

3. Communicate your choices with your children.

Let your children know what you and your spouse have decided about your end-of-life decisions.  Tell them who you have chosen to make decisions over your healthcare and explain to them the reasons why.  Even if your child question your choice, it is better to have that conversation now and not leave your child hurt and angry - and prone for litigation - after you have already passed.