Without careful planning, the legacy you leave after death may not be the one you intend.
Emotions run high after a death in the family, with will contests and other fights as a common result, said elder law attorney P. Mark Accettura of Accettura & Hurwitz. "Greed is not the problem," he told attendees Monday at the American Institute of Certified Public Accountants' Advanced Personal Financial Planning Conference in Las Vegas. "It is the symptom. The problem is fear."
Evolutionary psychology has hard-wired us to be sensitive to exclusion, said Accettura, who is also the author of "Blood & Money: Why Families Fight Over Inheritance and What To Do About It." Bequests and appointments can bring up deep-seated issues such as favoritism, birth order and sibling rivalry. "They're leaving a lot more symbolically than just money," he said. "Money is how we keep score about who's more loved."
Don't think the fight is necessarily one you'll miss out on, either. "Inheritance disputes are not just about lawsuits that happen after someone dies," said Accettura. Often, fights spring up as the parent's mental or physical health declines. Adult children may try to make demands of advisors that assets be moved or another family member's access restricted, he said. A health decline can also trigger elder abuse. "That's the opportunity for someone who wants to change history in their favor to begin to manipulate the person," he said.
While you can't entirely rule out the chance of a family fight over heirlooms or hurt feelings over an unequal bequest, there are steps that consumers can take to avoid lengthy and expensive will contests and other problems.
One of the simplest: Prepare a will, and keep it updated. A little more than half of consumers have a will, according to legal publisher Nolo. But of those, 20 percent haven't been updated after a major life event. A will sets a bar for your intentions, said Accettura. Save old versions. They can help show consistency of character, providing evidence (for or against) accusations that your testamentary capacity has diminished or that you're under undue influence.
Be cautious about wills that don't require you to sign in the presence of a lawyer and witnesses, he said. They're easier to overturn, should questions arise of whether you have the legal and mental ability to amend a will.
Consider how bequests and other estate-planning decisions may be perceived by individuals with competing interests. "Estate planning is about balancing the needs of those groups, and also about creating estate plans that do not pit one group against another," said Accettura.
When possible, make appointments—such as power of attorney or trustee for a trust—that charge the person appointed with fiduciary duty, he said. That means they have a legal duty to act in your interests, and can be held accountable if they don't. Children may feel slighted if it's not the eldest or geographically closest chosen, so be prepared to justify who you're appointing. (Another option: Hire an independent corporate trustee.)
Consumers may also consider adding a no-contest clause to their will, which cuts the inheritance of anyone who tries to contest the will. But don't rely on this provision, Accettura said. "Courts are very reluctant to enforce them," he said. "You can't rely on them as an absolute bar."
Advisors have differing opinions on just how much you should tell your kids. "A happy retirement revolves around educated and empowered kids," Tim Prosch, author of AARP book "The Other Talk," told attendees at a Financial Planning Association conference last fall. Conveying your end-of-life plans and desires in advance can help you avoid making bad decisions when options and time are more limited and "everyone is freaking out," he said.