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How to Avoid a Free-For-All When You Die


You’ve probably heard the stories about what happens when a family member dies without doing any estate planning… and if you haven’t heard them, I could fill a book!

The vacuum left by the death of a loved one can produce some strange and unfortunate reactions. Slights (or perceived slights), feelings of unfairness and quirky family dynamics, though repressed during life, can rise up after death, and cause havoc, even in good families. Things that seemed minor become magnified. Hidden feelings of envy come bubbling to the surface. Those hidden family dysfunctions often erupt when the matriarch or patriarch of the family dies.

Unfortunately, the stuff of dark comedies and suspenseful mysteries surrounding the death of a loved sometimes play out in real life. Furniture and cherished belongings go missing. Family tensions having roots so far back no one remembers anymore often manifest in the scramble to obtain control when the dearly departed is gone.

Even in loving families, which are treasures to be appreciated, the lack of adequate estate planning adds tension, anxiety, uncertainty and complication to the weight of loss and grief that the family experiences in the wake of the death of a loved one.

How do you want your family to remember you?

Not doing any estate planning means that your loved ones will be left with a more difficult, complicated, anxiety-filled task of picking up the scattered pieces you leave behind, and it opens up the possibility of some family members taking advantage of the vacuum to the determent and permanent hard feelings of other family members. If you care about your legacy and care about your loved ones, you will plan out how your estate should be handled so it isn’t left to the whims and devices of disgruntled or misunderstanding family members.

Here are five (5) ways estate planning avoids the free-for-all:

1. Executor – Choose who will handle the administration of your estate. Without a Will anyone can assert control to the detriment or chagrin of others. The person who wants to take control isn’t always the best person for the job. Choose the right person who will carry out your wishes and treat everyone fairly. I have observed over and over again situations in which some family members rush in and clean out the house, take the best things for themselves (or are accused of doing that) and families are torn apart forever as a result. This is a worst case scenario, but I have seen enough of the worst case to know it happens more often than you might think. If you don’t have anyone in your family who you can trust (or is willing and able),  if you don’t have a family member who can be objective and unbiased, if you aren’t confident a family member won’t be unduly swayed by other family members, choose someone neutral and objective, even it is a bank trust department.

2. Beneficiaries – Choose the beneficiaries of your estate. Without a Will, the beneficiaries of your estate are chosen for you by state statute.You should be the one to choose who gets your estate and how they receive it. In estates where no planning is done, the door is left wide open for unscrupulous family members to step in and clean out bank accounts and belongings before anyone gets wise to it. Maybe they legitimately think it is their right, but they aren’t being fair or objective about it. Once property has been taken, it isn’t easy to recover. It will cost you family a fortune in legal fees. In the end the people you want to receive your estate may not receive it. The cost of attorneys’s fees and the uncertainty of the probate process often means that the unfairness, hard feelings and family tensions are the legacy left behind. You can avoid that by naming your beneficiaries and leaving clear instructions.

3. Guardian – Choose who will raise your children and who will oversee the assets left to them. Without a Will, anyone willing to take your children may claim them, even if their motives are not pure or they are not the best role models. Your children may get split up or be taken in by people who are not looking out for their best interests. Even if a court or DCFS is involved, your children may not be well served. The best person to raise your children may not be the best person to trust with your assets. If you are divorced or separated and the other parent survives you, you may not want them having control of the assets. You may want to name someone other than the guardian to protect the assets and make them available as the children need them If you haven’t done your estate planning, you will have no choice in making these determinations.

4. Distribution of Estate – Choose how much of your estate is distributed to which beneficiaries and how it will be distributed to them. I have already noted that estates often get looted when there is no planning or inadequate planning. One of the most common questions on websites that allow posters to ask attorneys questions is some variation of: how can I get my father’s (mother’s, grandmother’s, etc.) assets back from my step-mother (brother, sister, uncle, etc.)? Even if a probate estate is opened, state statue determines who gets your estate and in what the proportions. You don’t get to choose unless you have done your estate planning. The assets will also go directly to your heirs without any oversight. That may not be the best result. Without some protection, the assets may be squandered quickly away. You can protect the assets and make sure the right persons get them if you do your estate planning.

5. Children – Choose someone to supervise assets left to minor children. Assuming that your children get your assets, and that is what you intend, without a Will, your children will receive the assets outright when they reach legal adulthood (18). Most 18 year-olds are not mature enough or experienced enough to handle money well. You can keep the assets protected while making them available as your children need them until they reach an age when you have confidence they will be able to handle what you have left to them responsibly if you do your estate planning. You can make sure the assets are used for things like college, instead of youthful indiscretions. You can make sure the assets are invested with careful oversight instead of kept under the mattress or in a non-interest bearing checking account or invested in a tempting fly-by-night venture.

These are just some basic considerations, but there are many others. How you hold title to your assets affects how your estate is distributed and who receives it. Many people make the mistake of adding children’s names to bank accounts and other assets, not realizing that only those children named will receive them when you are gone and subjecting your assets to their creditors in the meantime! These considerations are all part of good estate planning.

I answer questions for people on AVVO about estates and estate planning issues. The general circumstances I have mentioned above are much more common than people care to admit. People die leaving messes for their families to deal with; and a lack of estate planning (or poor estate planning) is almost always a contributing factor. The void left by a lack of good estate planning opens the door for greedy children, second spouses and even non-family members to take control of estates to the exclusion of the children or family members.

People often wonder what can be done to make things right in those situations, but it is usually too late by the time the questions are being asked, too costly or too difficult to right the ship. The cost to hire an attorney to obtain information and to challenge what has been done is usually too great an obstacle, coupled with the uncertainty of not knowing exactly what happened and the difficulty in undoing the damage. Most of the time the injustice never gets addressed.

The failure to plan leaves your estate open to many potential problems and many risks that can be avoided simply with a good estate plan.

You can prevent injustice and ensure fairness by doing your estate planning. Your loved ones will appreciate you for it.

If you haven’t done any estate planning, don’t put it off. A good attorney will make the process easy. He or she will fill in the gaps in your understanding, provide you options and prepare documents that will ensure your wishes are carried out when you are gone and that your loved ones are treated fairly.

You don’t know what tomorrow may bring. Tomorrow isn’t guaranteed. Don’t put it off. Do not leave a mess behind for the people you love.

If you don’t have an estate planning attorney, we would be glad to help you. CONTACT US for a free Worksheet and other information to get you started.

Kevin G. Drendel
Drendel & Jansons Law Group
111 Flinn Street
Batavia, IL 60510
630-406-6179 fax
[email protected]