A small minority of parents involve their children in their estate planning process. The reasons for this fact are understandable, but not sufficiently well founded to make this trend a smart one.
Sources of the Traditional Route to Estate Planning
Often, the estate planning process is initiated while the children are still too young to be able to meaningfully contribute understanding of how the estate plan might best meet their needs. For a time, it is true, the parents know best.
In addition, people often feel reasonably well justified holding the view that the fruit of their life’s labors is theirs to do with as they please. The children should appreciate the gifts they receive, not seek to tell the parents how to make them.
And then, the habit and, indeed, ethics of legal practice have long required avoiding representing multiple interests. An estate planner serves the individual seeking a plan for distributing his or her estate, not the estate’s beneficiaries. The inertia of habit and the simplicity of serving a single interest funnels estate planning out of earshot of the children in a way that reinforces a sense that the estate plan is none of their business.
There is no need to quarrel with the reasons that estate beneficiaries are not allowed or invited to participate in the estate planning process. All of these reasons can be legitimate and still fail to serve the real interests of the individual that needs a plan for distribution of his or her estate among his or her heirs and beneficiaries. And the reason the traditional way of doing estate planning often fails to achieve its desired result is simple: it assumes that the parties receiving the estate gifts will embrace the estate plan without having been involved in its creation. This is an unwise assumption.
Just think of how often much smaller gift giving goes awry. Think of the long return lines in the department stores the day after the Christmas holiday, for example. And this is after Santa has gone out of his way to invite children to write him letters telling him what they want!
A terrific book about mediation and negotiation that is aimed at the general public is Bargaining with the Devil: When to Negotiate, When to Fight, by Robert Mnooken, Chair of Harvard Law School’s Program on Negotiation. The book explores disputes in a variety of contexts where the relationship between the parties in conflict has grown so hostile that at least one side views the other as immoral, even evil. Thus, the title, Bargaining with the Devil. I will say a word about Mnooken's advice in such situations at the end of this post, but my real interest in mentioning Bargaining with the Devil is that, at the end of this book's last case study, Mnooken offers an important gem of advice relative to proactive, preventative communication in the estate planning context.
The case at hand involved three siblings’ inheritance of a large and valuable vacation property. The conflict had escalated to the point that two of the siblings were no longer talking to each other. If nothing was done to change the situation, the parents' gift to them threatened to permanently injure all the siblings’ relationships with each other, which certainly was not their parents' intention in making the gift.
Navigating a Traumatic Time: Navigating the unintended conflicts created by your parents’ will, trust, and/or other estate planning can be, for many, one of the hardest, most emotionally traumatic periods of life. A person can find himself or herself simultaneously coping with the grief and loss that attend the death of a parent, trying to process his or her emotional response to the way the estate is being distributed, struggling to sort out the time consuming and unfamiliar chores attending a death, and having to navigate both expected and unexpected conflicts with your siblings.
Complex Conflicts: And conflicts with siblings over estate distribution issues are rarely simple matters. If the parent suffered a prolonged illness prior to death or if some of the children do not live close by, the sibling who took on responsibility for taking care of the parent may feel unappreciated or unfairly treated. At the same time, siblings who live far away, may feel distrustful and out of the loop. Likewise, each sibling’s experience of his place or roll in the family may be re-engaged following the death of a parent and the pain of old, unresolved wounds may be renewed. Ineffective or unconstructive patterns of communication between family members can contribute a further layer of stress, misunderstanding and emotion. And then differences in each sibling’s standard of living, income, state of residence, family obligations, and future plans can make it hard for all to understand and approve of the way the others wish to handle their portion of the estate assets.
Hope Arrives: The good news is that simply identifying the complexity of such conflict opens a way to reduce the pain it causes. It does so by helping a person to immediately grasp the value of finding a conflict resolution process that respects and knows how to guide people through the conflict’s deeply human dynamics. When you are able to clearly describe the thing you are looking for in this way, you are on the verge of finding it. Suddenly, there is hope that there is a way to get your needs met and for healing in the family to occur.
If you come to this page feeling alone and overwhelmed because members of your family are in conflict over an issue, or several issues, related to the needs, interests and/or plans of a parent or elder relative, take heart. The truth is families everywhere are experiencing an increasing need for assistance in navigating conflict and the good news is that professional mediation is developing increasing capacity to meet that need.
Consider the challenging dynamics families face today. At every age, family members are confronted by obstacles, demands and opportunities never before encountered in such numbers:
Children are now raised in all kinds of family configurations and the traditional vision of the nuclear family no longer pertains in the majority of American households. Young adults take on staggering amounts of debt to fund college. Women are increasingly becoming the major income source for families of all kinds. Siblings are commonly dispersed from coast to coast and even internationally. And the elderly, who live on average thirty years longer than they did a century ago, are able to live longer with chronic diseases requiring various degrees of ongoing care. 43 million Americans — one quarter of all American households — provide unpaid care to adults over 50-years-old. It is a brave new world families face today. We deserve each other’s admiration for getting on as well as we do!
It’s a common joke these days, however, to refer to oneself and one’s family as dysfunctional, but we are not truly dysfunctional; we are simply struggling to cope with a surge of societal changes coming to a head with the aging of the baby boomer generation. So cut yourself and your family members a little slack. It’s no wonder if you are experiencing painful conflict. But now consider that elder mediation can offer you and your family a path to real relief.
Perhaps your family is trying to cope with one or more of the following issues that are among the most common sources of conflict among adult siblings and their parents:
These are tough challenges indeed. Fortunately, Family Tree Mediation’s elder mediation services can help in 10 important ways:
If you have questions you would like to ask about Family Tree Mediation’s elder mediation services or if you would like to schedule an appointment for mediation, you can call me at (650) 762-TREE [762-8733] or email me using the email form on our Contact Us page. One way or another, my wish for you is that help is on the way!