Line up estate now, ease burdens later
Sally Herigstad assumed her father would leave his affairs in good order before he died. But when that happened in 2005, Ms. Herigstad, of Kent, Wash., discovered that she was wrong.
"The will was 20 years old and preceded his last marriage and divorce," she says. "About the only thing it accomplished was designating me as the executor. His apartment and affairs were messy beyond belief."
Her situation mirrors that of countless families who discover that a relative's estate is in disarray, either because a will is inadequate or nonexistent, or because they must deal with a lifetime accumulation of possessions.
Nearly 60 percent of adult Americans do not have wills, according to the legal website FindLaw.com. Other estimates put the figure closer to 70 percent. Whatever the reality, attorneys, estate planners, and authors are creating books, workbooks, and seminars to help families stop procrastinating and start taking charge of estate planning. Such matters grow increasingly urgent in an age of divorce, remarriage, and stepfamilies.
"It is absolutely essential to have a will and at least a living trust," says Kraig Kast, CEO of Atherton Trust in Redwood Shores, Calif. He notes that a living trust avoids probate, a costly, time- consuming process. "Probate only benefits attorneys, never the heirs," he warns.
"It's so simple to address this," Mr. Kast adds. At minimum, he says, a person should have a durable power of attorney for finance, a durable power of attorney for health, a will, and a living trust. "The whole thing can be done in probably one or two meetings with a qualified adviser."
Without such planning, some heirs must interrupt their lives and careers for extended periods to put an estate in order. Herigstad, a CPA and author, initially told her editor and book agent that she needed a week off. That stretched to two months. "My sisters flew west to help for a few days, and then I was left to sort out the rest," she says. "They couldn't help that. I'm the only one who lived within driving distance, and I was the executor. But I felt that they moved on with their lives while I made calls to probate courts and made decisions about thousands of treasures and piles of junk."
Despite the awkward silence that often surrounds estate planning, a survey by The Hartford, an insurance and investment group, finds that parents are more willing to discuss these issues than their baby-boom children are. Parents without wills are also more likely to feel comfortable about being approached on the subject than children believe.
At the same time, children are less likely to know specifics about the estate plan, including how to locate important papers and safe deposit boxes, than parents think.
When David Finkle, a drama critic in New York, visited his mother in New Jersey, she often said, "You should know where certain things are, in case something happens to me." But, he says, "I was not eager to think about it, and I didn't pay strict attention." Yet because all her legal papers were in order, settling her estate proved to be a relatively smooth process. She had also taken him to the bank where her safe deposit box was and told him where to find the keys.
To help families create orderly estates, Mr. Finkle and Ellen Baumritter wrote "Putting Things in Order: A Journal to Organize Your Life for the Next Generation."
Finkle believes hushed attitudes about estates are changing. Ten years ago, when he and Ms. Baumritter finished their book, publishers liked it but were uncomfortable with end-of-life issues. Today, they sense a growing willingness to address them.
As one way to break the silence, professionals encourage families to start a conversation.
"It's very important to have family meetings where everything is discussed and it is decided who gets what," says Matthew Tuttle, a certified financial planner in Stamford, Conn. "Often parents make the mistake of leaving things out of the will that cause fighting later. Also parents make the mistake of splitting an illiquid asset like a home, where one child might want to keep it and the other might want to sell it. Family meetings can take care of these issues."
Such conversations might have saved a Massachusetts family from what one daughter, Ann D., of Plymouth, describes as "a lot of heartbreak and discord" among seven siblings because her mother wrote a generic will.
"She left nothing specific to any of us except the youngest boy, who gets her new car," says Ann, who does not want to use her last name because of the strife. Her mother decreed that household possessions must be distributed by a complicated lottery system. The house is to be sold and the money split seven ways. Ann adds, "When we asked her occasionally what she was going to do with all her stuff, she just said, 'You can all fight over it when I'm gone.' "
Preventing acrimony is essential, says Les Kotzer, an estate lawyer and author of "The Family War: Winning the Inheritance Battle."
"Some of the biggest fights we see are over personal items," he says. "We call it fighting over the memories – Dad's watch, Mom's wedding ring, Grandmother's gramophone that's been in the basement for 40 years."
Although there will never be total equality when it comes to splitting up personal items, Mr. Kotzer says, "You'll lessen the battle if Mom and Dad have discussed this with you. Sometimes just give it up and get on with your life. Is that china, that ring, that clock worth paying the price of losing your family?"
Changing family structures create other legal complexities. "It's fairly common now to have a family with a spectrum of people, such as a husband and wife who have both been married once or twice before," says Terence Nunan, an attorney in Los Angeles. "Each of them may have had a child or two, and their current marriage has a child or two." These half siblings and stepsiblings can figure in an inheritance.
Mr. Tuttle emphasizes the importance of keeping all documents current.
"If you've got IRAs, life insurance, or annuities, that has nothing to do with your will," he says. "Whoever is listed as a beneficiary on that paper is who gets that, regardless of what your will says. We hear horror stories all the time. Someone divorces, remarries, forgets to change the beneficiary from his ex-wife to his new wife, and the ex-wife gets $3 million."
Greg Wilson, a public-relations consultant in Washington, D.C., faced legal challenges even though his mother had prenuptial agreements for herself and her second husband, a trust for the house, and wills. He advises others to get a good lawyer, talk about things early and often, be diplomatic, throw away junk, and give away a keepsake to those who want one. Finally, he says, "Remind yourself that it's only stuff – or money."
Herigstad offers other suggestions: Update your will every few years. Stay current on taxes and bills. And if you aren't sure what your children want, ask. "Some of the papers my father threw away would have been more valuable to us than the boxes of knickknacks he left us," she says.
Despite the challenges she faced, she takes a forgiving approach. "I think he would have liked to have made things easier for us if he had only known how."
As one way of making things easier, Joan Bramsch of St. Louis urges parents to "lighten up" their possessions. "After having boxed, hauled, given away, discarded, and categorized a lifetime of belongings, letters, cards, old bills, old clothes, recipes, magazines, photographs, and so on for four grandparents, two parents, a father-in-law, and a husband, I have vowed not to burden my children with that thankless chore," she says.
She adds that she has given enough utensils, furniture, dishes, towels, and bedding to a women's shelter to furnish an apartment. "Not only does it do good, but my 'unstuffed' home now has been renewed. The energy is simply refreshing."
Ms. Bramsch, an educator, also has her financial and legal affairs in order. She has begun sharing possessions with her children and grandchildren who want them. And she has edited more than 10,000 family 35mm slides down to 4,000, which she will scan onto CDs.
Her labors, which could serve as a model for others, have not gone unnoticed. "My children," she says, "appreciate the effort so much."