Baby boomers are expected to pass along $73 trillion to their heirs over the next two decades. Conventional wisdom says that parents should leave equal inheritances to each of their children for the sake of family harmony. Bequests often are viewed by heirs as an indication of parental love, and you don’t want to trigger bad blood between siblings or, worse, have a good chunk of the assets wind up in lawyers’ pockets because a disgruntled child challenges the inheritance instructions in your will or living trust.
But that thinking is changing. More than one-third of parents’ wills or living trusts divide their estates unequally among their children. The reasoning is that “equal” doesn’t always mean “fair,” explains top estate-planning attorney Jeffrey Condon. Many parents want their final wishes to reflect their values, especially if their children’s histories and financial circumstances are very different. Examples: One of your children is a struggling artist, the other is a high-powered executive…one child lives near you and serves as your primary caregiver…your son has a drug problem and can’t be trusted with a lot of money…your daughter is in a terrible marriage, and you don’t want your hard-earned wealth to go to her spouse.
Reality check: Unequal inheritances pose unexpected challenges for families. Condon warns that careful planning and communication in the “inheritance arena” is absolutely necessary to avoid hurt feelings, feuds and long-standing conflicts. Here, he shares with Bottom Line Personal critical estate-planning strategies to use if you decide to go this route…
Practice complete transparency with your heirs. It is not the unequal inheritance that tends to ignite disagreements—it’s the cover-up. Many parents are uncomfortable discussing their own mortality or their personal finances with their children…and many children assume that their parents’ estate will be divided equally, so they don’t seek additional information or clarification. So when “equal-expecting heirs” discover inequality after their parents’ deaths, that’s when the chaos and conflict begin. Example: One father routinely assured his two children that they would be “taken care of” in his estate plans. His youngest son assumed that meant he would get the beloved family home. After his father’s death, he learned from the executor of the will that the property had been left to his older brother. The younger son felt deceived, and he accused his brother of unduly influencing their father.
Important: If you choose not to be fully transparent with your heirs while you are alive or you are estranged from one child, give your lawyer a letter explaining your intent. Your lawyer will provide that letter to your children after your death. Your heirs will get a chance to read your own words explaining your sentiments and why you chose to distribute your assets in the manner you did.
Have an in-person and online family meeting to explain your estate plan to all your beneficiaries and allow them to voice their thoughts. This is not a cure-all for family grievances or conflicts, but it does give children and other heirs a chance to process your plan and feel like they are being heard. Stress that your decisions may be difficult for them to accept and that they are not a reflection of your love for them but, rather, a reflection of your values.
Additional benefits: Your children’s feedback may cause you to rethink some of your decisions. Even if you have a strong relationship with your children and talk to them often, you may not know their preferences. Example: One client planned to leave an outsized inheritance to his younger son who struggled with financial hardships. The father feared that his two older children would feel like they were being punished for their successes. In fact, the older children validated the father’s estate plan because they didn’t want to be responsible for their struggling younger brother in the future.
Make special money bequests in your will or trust, then divide up the rest of the assets equally among your children. By compartmentalizing your assets this way, you can make perceived inequities feel more fair and easier to accept than if you just leave one child a larger lump sum than you leave to the others.
Scenario #1: Elderly clients often feel one child should be rewarded for caregiving (managing the bills, driving them to medical appointments, doing maintenance around their homes, etc.). Ask that child to keep track of his/her hours, then put a provision in your will or trust that stipulates the child be compensated at an hourly rate for the caregiver work. Direct the executor to pay that child for the caregiving first, before equal shares of the estate’s assets are doled out to the other heirs.
Scenario #2: A client had a child with three kids…and another child had just one kid. I suggested the client leave equal inheritance amounts to both children, as well as smaller but equal amounts to each grandchild. The larger family obviously wound up with a bigger overall inheritance, but leaving each grandchild with the same small amount felt equitable to everyone involved.
Scenario #3: Another client had two children. He helped his older child with law school tuition that amounted to $100,000. His younger child did not pursue any higher education. I advised my client to purchase an insurance policy so that his younger child would receive a $100,000 death benefit…and have his inheritance plan leave all of his assets to each child in equal shares.
Create trusts to provide your estate with more control and flexibility over assets after your death. Trusts are legal entities that own the assets you transfer into them. Many clients place some or all of their assets into trusts for tax purposes or to avoid probate, which is a costly and time-consuming court-supervised legal process to distribute a deceased person’s assets to his/her after-death beneficiaries. Trusts also are useful when the inheritance problem being addressed isn’t so much about the equality or fairness of your children’s inheritances but how those inheritances are used, applied and accessed after your death. Ask your estate-planning attorney about the following options…
Irrevocable Protection Trust: This can prevent an unreliable child from squandering his inheritance. Perhaps, he is struggling with an addiction or has heavy debts or is just financially irresponsible. You appoint a trustee who follows your stipulations about how and when this child receives the assets from the trust. Example: The trust’s instructions can say that before the child is allowed direct access to the inheritance in the trust, the child must first have to reach a particular age…or the child must have to pass drug-detection testing over a specified period of time. Smart: Don’t select the child’s sibling or a close family member as the trustee of a child’s protection trust. When you name a blood relative as the trustee (sometimes called the child’s “inheritance manager”), the family relationship becomes supplanted by the “money relationship.” Blood and money do not mix well and typically portend the end of the family connection.
Special-Needs Trust: This provides for a dependent with mental or physical disabilities. It can cover costs for medical care or day-to-day needs while also allowing the child to remain eligible for government disability benefits.
Protection Trust: This is useful if you’re concerned about a child’s rocky marriage and want to protect her inheritance from a divorcing son-in-law. You can stipulate the assets in the trust be used only for the health, education, maintenance and support of your daughter and her children…but not for the spouse.
Include a “no contest” clause in your will or trust if you think an heir may legally challenge your estate plans. This clause typically stipulates that anyone who contests the will or trust and loses then forfeits his/her right to any inheritance. You’ll need to leave the less favored child enough to make it worth his while not to fight your estate plans in court. The enforceability of no-contest clauses can vary by state, so consult your attorney before considering this option. Another caveat to avoiding legal challenges: If you decide to disinherit a child, specifically mention his name and your wishes in the will or trusts. Otherwise, the child could raise the claim that you left him out by mistake or oversight.
Create a personal possessions memorandum for hard-to-divide personal items in your estate, and attach that list to your will. Reason: The biggest inheritance fights often are over sentimental objects that don’t have a lot of financial value, such as mom’s quilt or dad’s military medals.
