What Parents Don't Realize About Their Wills

Like every relationship it had its ups and downs. But now, after a lifetime of sharing common bonds and memories, they can't even bear to be in the same room with one another.
It's a divorce, but not between spouses. This is a Sibling Divorce -- the result of an estate dispute over a parent's will. Now siblings who grew up together refuse to call each other "brother" or "sister", instead referring to them as "my mother's other children". Generations of cousins will never know one another.

These fights can be just as emotional, mean-spirited and divisive as the nastiest divorce between spouses. Is it just about the money -- pure greed that drives a wedge between family members when parents die? Anyone who deals with these kinds of disputes on a daily basis knows otherwise.

At the heart of most estate disputes lies family dynamics and history.

A will is the last thing that a parent says to his or her children. Written in black and white, it creates a definitive, lasting record of the relationship between parent and child and among a child and his or her siblings. That reason alone explains why estate disputes are so hotly contested. Estate litigation is often about one sibling trying to correct that record while his or her sibling seeks to uphold it.

When parents die and children get a copy of the will, they look to see if the will confirms their own perception of their family and their role in it.

The simplest choices can have huge emotional impact. For example, choosing one child as the executor to the exclusion of the other may make perfect sense to the parent who does not think it to be the least bit controversial. But often such simple decisions can be the spark that ignites the powder-keg. The child chosen as the executor reads the will as confirming the trust Mom had in him throughout her life. To the other child, it confirms that Mom didn't trust him as much as his sibling.

Even in the closest of families, a will can stir up emotions and feelings that had been bubbling under the surface for many years. While alive, the parents are the lid which prevents those emotions from manifesting into pitched battle. But when they are gone, those childhood feelings and family dynamics can finally be focussed on something tangible-the parent's estate. The Estate becomes the lightening rod for the years of underlying emotion.

How do siblings justify fighting each other over their parent's estate? It is a rare occasion when a party will admit that he or she is fighting only for the money. Instead, when an estate dispute arises, children justify their involvement on two bases:

Mom's true wishes

Both sides will state that they are fighting to uphold mom's true wishes.

The challenger of the will justifies his challenge by alleging that the will does not reflect Mom's true wishes. The challenger does so, by alleging that Mom was not able to understand what was written in the will (in legal terms, lacking testamentary capacity) or was forced to write a will in that manner by the beneficiary ("undue influence"). On the other hand, the child who seeks to uphold the will, justify his position as defending mom's true wishes as expressed in his will. "I am just doing what mom wanted", he will say.

Fairness

"It's not fair!" Those words echo over and over in every estate litigator's office. The familial relationship continues for many years. Over its course, there are credits and debits for each child. The younger child may have received help from mom and dad for college, while the older one may have had to work four jobs to pay for his education. At the same time, the older one may have received the opportunity to work in the family business, while the younger one had to find his own career without mom and dad's help. The will is the last chance to even things up. If children don't feel that they have been treated fairly, this is their last chance to even the score.

The fact that the estate is large or small or that the estate plan is simple or complex does not matter. It is that family history that matters.

How do parents set the stage for divorce between the children they love? Often they do not recognize how the words in their will are going to resonate with their children. Anticipating how their children will feel when they read those last words in the will is crucial if parents want to leave the most important legacy for their children -- family peace.

Comments

[Lincoln]

"How do parents set the stage for divorce between the children they love? Often they do not recognize how the words in their will are going to resonate with their children. Anticipating how their children will feel when they read those last words in the will is crucial if parents want to leave the most important legacy for their children -- family peace."

I find this an interesting comment, and bit of advice. The parents do set the stage--and they are either empathically attuned to how their kids feel, or they are not. If they are not, they probably don't know how to be. Advising them to "anticipate how their children wil feel when..." is probably advising them to do something they cannot do, and that being the reason they have not already done it.

I wonder if it maybe it would simply be better for the kids in such families to just go their separate ways after. That might be the least harmful outcome. The kids in such a case are not empathic with each other either, just as their parent was not empathic to them. Empathy is something that has to be experienced to be learned. If you don't learn it at home, from your own parents, you may never learn to develop it. You may never develop a capacity for empathy toward others, and many never do.

FWIW.

[FamilyFight]

I agree that the seeds of these kinds of "divorces" are sown long before the will is ever written.

[NABNYC]

Well the good news is that this is likely the last generation of probate litigation, since this post-WWII generation is likely the last broad group of Americans to have anything significant to leave to their children. Under the neocon economic plans, no one will own a home since they will have 100-year mortgages with tons of hidden fees, and no equity. The banks will own all the real estate, and we'll all be renters. No more pensions. Social security will be "privatized," meaning eliminated. And absent government-provided healthcare, what little is left will go to the medical mercenaries we call "our" doctors.

When there is money, the kids will often fight. The person having their estate documents prepared should not try to rule from the grave: let it go. Preferably give equal shares to each kid; either specifically require or forgive any pre-existing loans to any kid; and if one is impaired (i.e. a junkie) put their share in trust to be handled by an institution, not a family member of friend. Don't tell anyone what your will/trust says, keep it private. And include a no-contest clause so that anyone who sues (with minor exceptions) gets nothing, and loses even whatever it is you intended to give them.

[ExPatriot70]

I live in Europe and the kids in the U.S, I have spent their inheritance for my own satisfaction just leaving enough to a friend to dispiose of the remains. I am now dating a beautiful women from the country in which I now live, I am enjoying my life the kids can make on their own, This way there will no fighting over the remains

[dadw5boys]

Leave the money and property with the responsible one!!!!!!!

Trust are great.

[larry278]

A will can't create peace in a dysfunctional family. If your kids dislike each other while you're alive, your death won't change things. Families which fight among themselves have rival factions. Each faction may be expected to avoid family functions such as family holiday meals. If you expect your dysfunctional family to make nice with each other at your family, it won't matter you'll be dead & won't hear their bickering or see them as they glare at each other at your wake. Bickering kids will continue bickering. Affluent kids often will walk away from their siblings regardless of the money they might get from your estate. Some of the less affluent can be expected to walk away from your estate & their more greedy siblings for they value peace above money. Only the truly greedy members of your family will fight for 'their' share of your estate.