If you look up the definition of Legacy in the dictionary, it has two distinct meanings. The first is a gift by Will, especially of money or other personal property (e.g. “Her aunt left her a legacy of $50,000”). The second is something transmitted by or received from an ancestor (e.g. “He left a legacy of love and caring”). Both of these meanings are common in the estate planning arena. Clients often plan to leave money, real estate, jewelry, artwork, etc. to family or friends, and most people want to leave their families with fond memories and treasured traditions or customs.
However, legacies of the second type can also cut the other way. That is, rather than good will and fond memories, loved ones are left with feelings of anger and resentment. Often this type of legacy comes from poor estate planning or no estate planning.
Read on for 5 ways to leave a legacy of pain that lasts long after you’re gone.
1. Naming co-fiduciaries who cannot work together. A vital aspect of every estate plan is designating fiduciaries to carry out your wishes. In a Will, this is your Personal Representative, in a Trust it is the Trustee, and in a Power of Attorney it is your Attorney-in-fact. These positions can be held by one person or by two or more people. Sometimes clients feel that it is important to appoint all of their children to these roles because they don’t want to hurt anyone’s feelings by leaving them out. If your children do not get along or if they cannot work well together, naming them as co-fiduciaries is not going to heal that relationship and will probably make it worse.
2. Naming fiduciaries who are not qualified to carry out the job. For most people it is not necessary to appoint a professional such as an estate planning attorney or a bank as Personal Representative of their Will or Trustee of their Trust. However, it is important to appoint someone who is conscientious, responsible and competent to carry out the tasks of settling the estate in a timely manner. These tasks often include updating bank and other financial accounts, gathering and organizing financial statements, making numerous phone calls to insurance companies and IRA custodians, cleaning out the house and readying it for sale, and working with professionals like attorneys and accountants, to name a few. If the person you are considering naming as a fiduciary does not do a good job managing her personal matters, chances are she is not going to do a good job performing these tasks for you or your estate.
3. Treating children differently. If you have more than one child, consider carefully the possible consequences of treating them differently in your estate plan. By that I mean leaving one child a greater portion of your assets and estate than another child, or directing that one child’s inheritance be distributed outright to her while another child’s share remains in trust to be managed for him. There are certainly compelling reasons to treat children differently in your estate, such as when you have a child who receives needs-based governmental benefits, a child who struggles with drug dependency, or a child with disabilities that impair her ability to manage assets. However, if there is not a compelling reason for treating a child differently than his siblings, doing so is likely to leave the child who is singled out feeling angry and resentful, and that anger is often directed at his siblings since mom and dad are no longer around. In my practice I have seen this result in a total breakdown of sibling relationships which extended into the next generation.
4. Not being clear about your wishes for your tangible personal property. If you’re a fan of the TV series Fargo, then you will recall how distribution of a parent’s tangible personal property in a manner that feels ‘unfair’ can create trouble (Season 3). Tangible personal property consists of items such as a car, jewelry, artwork, tools, collections/collectibles, etc. In Fargo, one brother received a valuable stamp collection and the other a Corvette. Sadly, many people don’t need a television show to experience the impact of family discord over the distribution of tangible personal property because they have experienced it in their own families. If you have valuable artwork, items that have sentimental value to your children, jewelry, or other possessions that could be a source of controversy, designating the recipients of those items rather than leaving it up to your children to ‘figure it out’ will go a long way in ensuring family harmony.
5. Conveying conflicting messages to family. Whether or not to share the details of your estate plan or legacy planning with family members is a personal decision. For some families, a family meeting to inform everyone of decisions regarding who will serve as Personal Representative of the Will and the distribution provisions of the estate plan is the norm. For other families, no information is shared. I see problems arise when a parent shares information, such as who is named as Personal Representative or to whom certain assets will pass, and later changes those decisions without telling family members about the changes. In my experience, it is a good idea to inform the people you are naming as your fiduciaries (Personal Representative, Attorney-in-fact, Trustee, etc.) in case they are not willing or able to serve – better to find out sooner rather than later. In addition, your named fiduciaries should be provided with some basic information that will enable them to help in the event you become incapacitated or when you pass away. This should include contact information for your professional advisors (accountant, estate planning attorney, financial advisor) and the location of your important documents. While you need not provide your family with information about the value of your estate, maintaining a comprehensive list of your bank and investment accounts, insurance policies, retirement accounts, annuities (including copies of the contract), etc. and informing your fiduciary of the location of that information will go a long way toward the smooth settlement of your affairs.
If you want to leave a legacy of love and fond feelings, take care to consider how your estate planning, or lack of estate planning, may impact those you leave behind. If we our estate planning attorneys can help you with that legacy planning, please contact us – we’ll help you leave a legacy that will live on in the hearts and minds of your loved ones in a good way.
Attorney Suzanne R. Sayward is a partner with the Dedham law firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement and elder law matters. She is certified as an Elder Law Attorney by the National Elder Law Foundation, a private organization whose standards for certification are not regulated by the Commonwealth of Massachusetts. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit our website at www.ssbllc.com or call 781/461-1020.
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