Over my career as an estate planning and elder law attorney, I swear I have seen just about everything. I cannot remember a fact pattern that surprised me or took me aback. I am honestly at the point now where I think that dysfunctional is the norm for the common family that we assist. I’m not sure if it’s because we specialize in estate planning and elder law and we get referrals and cases that are more complex and more advanced than others, or if that is just the norm these days. My gut says it is probably the latter.
I did some research to define the word dysfunctional, and there is no clear-cut definition. But my gut would say that dysfunctional would include families such as second marriages with kids to different relationships, as well as addictions or spendthrift issues, or just family dynamics in in-tact families where people do not care for each other. Again, I think this is probably the norm more than any exception.
It is imperative that families are open and honest with their attorney so that the attorney can put a plan in place that addresses what they need for their specific situation. Dysfunction does not present as the same fact pattern in any two cases, and therefore an experienced estate planning attorney is needed to be able to dot the I’s and cross the T’s. Be very wary of the do-it-yourself sites or general practice attorneys who don’t specialize in this area if there is a complex fact pattern for you and your family.
We love assisting any and all families and certainly love putting the fun in dysfunctional. We look forward to providing an estate plan that is unique for you and your family, whether you are dysfunctional or as functional as anyone else.
Please feel free to give us a call if you have any questions or comments at 717-845-5390.
When I ask my clients what is driving them to come see me for estate planning, I usually get the same answer; we want to make sure that our family is taken care if something ever goes wrong. It’s a simple enough objective, but all too often clients are only thinking in terms of financial help for their family. One of the most important things a parent should include in a Will has nothing to do with money, it is deciding who would be their preferred choice of guardian for their minor child(ren) in the event of the parent’s death.
A guardian is a Court appointed person who can legally care for a child who has lost both of their biological or adopted parents. A guardian is appointed only by a Judge after judicial proceedings. During that proceeding the Judge will consider evidence to decide who is the best person to care for that child now that the parents are deceased. An overwhelming piece of evidence in that decision would be the deceased parent’s choice of guardian, which is commonly listed in their Will. Here are some factors to consider when trying to decide who would be a good choice of guardian for your child(ren):
Have that discussion. No matter who you ultimately decide would be a good choice of guardian for your child(ren), be sure to have a talk with that person to make sure this is a responsibility they are prepared to take on. Serving as a guardian for a child is an awesome responsibility, make sure your guardian is willing to assume this responsibility before making your choice.
Plan for the immediate future, not forever. Remember, you can always revise your Will in order to change your list of preferred guardians over time. Therefore, choose guardians who would best serve your child(ren) now, and in the next few years. The right choice for a toddler may not be the right choice for a teenager.
Have a back-up plan. Never just list one choice for guardian of your child(ren). It is important to always list at least one back-up choice. Your first choice may not be able to serve for many reasons, so always be sure to include a second or third choice.
What if I don’t think anyone in my family is the right fit? Your preferred choice of guardian for your children does not have to be a family member. You can choose anyone who you feel would be best suited to serve in that capacity. When making the decision as to who should serve as a guardian the Court simply makes that decision based upon what is in the best interest of the child. The Court is not restricted to only consider family members.
Remember, don’t get caught up in just focusing on financial oversight. Engage in a thoughtful analysis of what the real world implications would look like if your guardian were doing your parenting. From daily life to finances, and everything between. By doing so, you will ensure your children are best cared for if the unimaginable would ever occur.
What is the worst-case scenario if I don’t plan? This is a question that was raised to me several years ago by a client, and I answered her question by walking her through what would happen if she did not have a plan, and she became incapacitated from a financial perspective as well as from a medical perspective. I also answered the question about what would happen if she died. My client was married with three children. Her husband had two children of his own, and she certainly loved them and treated them like her own for all intents and purposes. Unfortunately, she did not see the need to do planning ahead of time, and the worst-case scenarios that I set forth to her are exactly what happened. She became incapacitated a few years later and had a stroke. While she was in the hospital, her children and her husband were disagreeing about the healthcare decisions that should be made on her behalf. To further complicate things, the stepchildren showed up at the hospital also arguing that they should be involved in the decision process.
There is a healthcare statue in the Commonwealth of Pennsylvania that does provide the next of kin and who would make healthcare decisions, but, ultimately, the hospital did not want the husband and his children along with the stepchildren to be fighting in the hospital, so they asked them to go to a guardianship hearing and have a judge adjudicate who would be the guardian of her healthcare decisions. There were a decent amount of assets in her name alone, and, unfortunately, the husband was not able to access them because she did not have a financial power of attorney in place.
He went to the bank trying to explain the situation but, ultimately, was told that he had to obtain a guardianship Order from the Court in order to be able to make decisions on behalf of his wife. The husband ended up in court fighting with his children that he had with his wife along with his children to another relationship, fighting over who should be granted guardianship of her. He ultimately won after having to hire an attorney and spent thousands of dollars in legal fees. She passed away and did not have a Will in place. I think everybody, including her and him, incorrectly believed that the husband would get 100% of the assets. I did explain to her the worst-case scenario under the Pennsylvania Intestate Succession Statute that the husband would be forced to get the first $30,000 and then have to split the remainder with the children that he had with his wife. Because of all of the strained relationships that occurred under the fighting that they had in the hospital and in the Courtroom, tensions were high, and they did not get along. The husband was devastated to learn that he only got the first $30,000 and one-half of the remainder. He asked his kids to please gift the money back so that he could have it to live the rest of his life, and they laughed in his face and kept the money that they were entitled to under the statute. Unfortunately, this scenario is far too common. As an estate planning and elder law attorney, I tend to live in the worst-case scenario world because that is what typically happens. If you plan, you avoid all of these circumstances and situations from arising. If you do not plan and you allow yourself to be subject to the government or the state’s rulebook, it may not go the way that you want it or the way that your family wants it. I think often about that day where I met with her and discussed the worst-case scenario. Clearly, I didn’t scare her enough or do enough to make her realize how devastating that could be for her family. I am saddened over the tension in the relationship now with the entire family and know that I could’ve easily eliminated all of those fights and arguments and the need to go to Court and spend thousands of dollars of money. My goal now is to show the worst-case scenario and hope that it hits home with at least one person who will get their planning in place ahead of time so that this does not happen to them. If you would like to learn more about how you can plan properly to avoid these and many other complications, please give our office a call at 717-845-5390.
It is very rare for us to assist a family with their estate planning that we are not asked from the parents whether or not they should talk to their adult children about their estate planning and about the inheritance. For years, I always recommended to clients that they have the conversation up front early and often with their kids. I always believe in full transparency and no surprises. Particularly in a situation where you may be providing for charities, other outside individuals, or maybe are not providing for your children equally.
I would always recommend to the parents that they try to let the children know that they plan to have the conversation and when. Giving the children a chance to come to grips with the fact the mom and dad are going to be talking to them about death and potentially the future. I always recommended that they do it around the period when there is not a lot going on in the children’s lives such as buying a new home, having a new child, or some major life event.
For years I would hear from clients who were so glad that they did have the talk with their kids and maybe even had several conversations. Although kids are typically skittish about talking about death, once you have the conversation they’re grateful to have an insight into your thoughts, ideas, and where you are headed. I have very rarely found children who didn’t want to carry out the wishes that mom and dad intended. Typically, the problem that we run into is if mom and dad did not tell the children clearly about what they intended the children end up fighting over the intent of the parent. Having the conversation ahead of time typically eliminates the issue with fighting about intent later.
I recently had several clients come back to me and tell me that the conversation did not go well and that the children and their relationship changed because of it. I tried in several of the conversations to dig a little deeper to figure out exactly what happened and where things went wrong, but unfortunately I was unable to get enough detailed information to ascertain where the issue arose, what the issue was actually all about, and why it has changed the relationship.
Due to the fact that I was unable to truly dig to find out what happened in the context of the conversation, I am hesitant to still not recommend having an open and honest conversation. My one client specifically said that he wished he would not have had the conversation ahead of time and it would’ve been better just to allow the documents to speak for themselves and allow him to die. I understand where he is coming from, especially since he believes that having the conversation changed the relationship.
I still believe that it is better to know that up front, and to be open and honest and know where you stand. The bottom line is that it is your estate planning, and you do not need permission from anybody, including your children, about doing it. Having the talk with them is more to make their lives easier after you are gone, and honestly is about them and assisting them moving forward, and also making mom and dad feel good. I do feel bad that a couple of the conversations didn’t go as planned, but maybe it opened up other issues that were there anyway, that were going to come up and maybe now better than later.
We wish you nothing but the best in having the conversation with your kids about the inheritance and your estate planning. It is always a good idea to have your attorney have the conversation with them as well to have a third party providing the information. We often have this conversation at no additional charge for our clients to help guide the conversation.
Please contact our office if you would like to discuss your estate planning or have us assist you in discussing these issues with your children. For any questions or help having this difficult conversation with your family, contact us at (717) 845-5390.
A will is a legal document that lets you choose the relatives, friends, and charities who you want to inherit your assets when you die.
If you die without a will, your assets will be distributed to relatives by the state laws of intestacy, which may not be according to your wishes.
If you don’t have any relatives, or they can’t be found, your estate will be paid to the state.
You can make your own will, or you can hire an experienced estate planning attorney to assure that every detail is addressed.
If you decided to draft your own will, proceed at your own risk. Make sure that you consider the likely value of your estate, all of your potential beneficiaries, any special gifts or bequests, the disposal of any remaining assets and the appointment of an executor. Consider having an estate planning attorney from your state review it, because unless you are familiar with the laws of your state, the entire will could be invalid, if there are too many mistakes.
You want to be sure your will is written correctly, because challenges can be expensive and time consuming. It will also cause unwanted pain and stress to your family and friends.
Make sure that your will is properly witnessed and that you’ve named a trusted executor. Be sure to tell him or her that they have been appointed and make sure they are willing to take on the task. This is important because it will be their job to execute the provisions of your will.