When Families Fight, Lawyers Win

There are lots of ways estate plans can go wrong.The family dynamic is often to blame. No one wants to believe their family won’t get along. Realistically we know this isn’t always true.Children of all ages tend to behave best when in the presence of their parents.When mom and dad are gone, sparks are likely to fly.So, what can be done?

There is an increasing trend in estate planning to nominate professionals such as attorneys, certified public accountants and corporate trustees, rather than family members, as agents under a Power of Attorney, successor trustees in a Living Trust and as executor/personal representative in a Last Will.Parents are making these professional designations with the intention that the professional representative (someone who “doesn’t have any of the family baggage”) will be able to efficiently and harmoniously administer their affairs and estate at an overall lower overall cost.

Keep in mind that the “cost” of handling someone’s affairs – either at disability or death – is not just financial.The cost can also be personal, professional, emotional and spiritual.Far too often, if a family member is expected to carry out the responsibilities related to the personal, financial and legal management of a parent, they are also expected to do so “for free.”

Nothing in life is free, certainly not taking on the responsibility for the oversight, care and management of an ailing parent or their estate.Typically, the responsibility will fall to the child that lives the closest – this is the one we refer to as “the good child.”.They are expected to put their lives on hold while every waking moment is spent either directly or indirectly dealing with the details. The list of details is endless and often with no end in sight.

Family members who are not involved in the day-to-day are unaware of the stresses caused by having to juggle multiple lives; their life (including their immediate family that could include a spouse, children and pets) and the life of the parent.Those in absentia often have a distorted view of the time and energy it takes accomplish all that needs to be done.And, it’s easy to play “Monday morning quarterback” and criticize the actions of the person charged with making decisions in the moment.

If there’s an only child, the pressure can be even worse.They literally don’t have anyone to share the responsibilities with.We call it, both a blessing and a curse.One the one hand, they don’t have to consult with siblings about their decisions.On the other, they aren’t subject to the criticism for the decisions they do make.

When families can’t resolve their issues amicably, inevitably a lawsuit will result.The Court Statistics Project reports that in 2017, there were approximately 16 million civil cases filed in all categories.Approximately 900,000 of these cases were related to probate and estates.Undoubtedly, of the 15.1 million remaining cases, a percentage were related to family disputes (not divorce, which represented another 5 million cases). The point is, there’s a lot of litigation going on.

The Family Wealth Transfer Report has determined that by the year 2030, more than $15 Trillion (that’s with a “T”) dollars of wealth will be transitioned from one generation to the next.Today, more than 22.4 million people have a net worth between $1 million and $30 million and that figure is forecast to increase by another 6.2% over the next five years.Estates in excess of $1 million dollars are no longer the exception, they are becoming the norm.The Greatest Generation and the Baby Boomers did a great job of saving their money.Now they face the challenge of passing that wealth on to children and loved ones.

Our experience shows that the two most common questions asked at a funeral are, “What do I get?” and “When do I get it?”And, generally this is prefaced with the phrase, “I don’t mean to be greedy, but…”Shocked?It happens every single day, many times a day.Most people are too polite to utter these words before mom and dad die, but the minute they are gone, the true nature of the family dynamic shines through.

This “What do I get” and “When do I get it” attitude starts the family fight ball rolling down the hill.The kids are in town, they might as well start helping themselves to those items of personal property that remain in mom or dad’s home.This is done before any accurate inventory of personal property can be completed and the property secured.It isn’t unusual for jewelry, collectibles and artwork to “go missing” at this vulnerable time.

If mom or dad received well-intentioned, but misplaced, advice from a banker or financial advisor and one of the kids’ names is on their bank account and/or investments, the fighting is nearly ready to ignite. Parents tend to believe the “good child” will always do the right thing.As a result, there shouldn’t be any harm in putting their name on assets for “convenience.”The legal effect, however, is to make that child the ultimate owner of the asset with no legal responsibility to share.Even if they agreed to share, there may be gift tax or other unintended consequences.

These are just a few examples of how things can start to go wrong.Others include the mismanagement of mom/dad’s assets while they are mentally incapacitated.Too often, the child in charge starts to treat mom/dad’s resources as their own, paying their mortgage, car payments, college tuition for grandchildren or other expenses.Attention to detail and the maintenance of good records is rarely a priority.After all, they have the full-time responsibility of caring for mom/dad as well.

After mom/dad passes, the child in charge is drained and exhausted from the time invested in the parent’s care.Now, with an opportunity to regain their own life, they are charged with the new responsibility of administering the estate.They’ve just been dropped onto a planet where they know no one and don’t speak the language.They also don’t appreciate how much personal liability they have for making sure everything is properly accounted for, property is maintained, investments are secure all creditors and taxes are paid, and the estate is properly distributed.

At this writing, we are bystanders to a myriad of family disputes. Here are a few examples: One brother refuses to properly account for the assets of the parents and hasn’t provided an accounting to his sister in more than two years!In another, two sisters have ganged up on the children of a deceased brother and refuse to share financial information and access to their rightful inheritance.In yet another, the eldest sister helped herself to mom’s debit card after death, cleaned out her bank account and refuses to provide any explanation for the missing funds.In addition, she’s commandeered the assets of a disabled sibling and is using those funds for her personal needs, including manicures and mortgage payments on her beach house.Another case involves a brother who has taken all of dad’s assets, refuses to provide any type of accounting and has deprived his sibling and the grandchildren of their intended inheritance.Each of these cases has resulted in protracted litigation with numerous attorneys in multiple states and tens of thousands of dollars in litigation fees and court costs.

These are just a sample of the cases that have resulted in litigation.Sometimes, in an attempt to avoid costly family litigation, the aggrieved family members simply walk away and the “bad actor” ultimately wins and ends up keeping the entire family inheritance.In both instances, the relationship among the family is irrevocably damaged.

The Law Offices of Hoyt & Bryan recognizes and embraces the desire to maintain family harmony.Our trust administration services now include representation as Personal Representative and/or Successor Trustee for those families who desire to employ the services of a dedicated legal professional.Our attorneys have more than sixty years of combined experience. Hoyt & Bryan is the only Florida law firm with two attorneys who hold the distinction of dual Florida Bar Board Certification in both Wills, Trusts and Estates and in Elder Law.

For more information, call 407-977-8080 to schedule your appointment today!

Peggy R. Hoyt - The Law Offices Of Hoyt & Bryan
About the Author: Peggy Hoyt
Peggy R. Hoyt practices in the areas of family wealth and legacy counselling, including trust and estate planning and administration, elder law, small business creation, succession and exit planning, real estate transactions and animal law.