How Can I Be Sure My Family Won’t Fight After I’m Gone?

Unfortunately, there is nothing you can do to guarantee that there will be no fighting among your loved ones after you are gone. There are plenty of difficult emotions to deal with after the passing of a loved one, and conflict can easily make matters much worse. Here are some steps you can take if you are concerned about whether you’ll be able to rest in peace.

Encourage family to sit down and talk out their differences. This is central to the Hawaiian practice of ho‘oponopono. Very often, small offenses grow into large offenses if they are not resolved. Families are sometimes torn apart because problems fester, and then get aggravated by various tensions, and then hit the boiling point when a senior family member dies and is no longer there to keep the peace. Most of the estate-related litigation we see has nothing to do with the estate per se, yet it becomes the focus of battles. If you are aware of conflicts between your children, encourage resolution and forgiveness during your lifetime.

Explain your estate plan. Include explanations for any gifts that may be misinterpreted or resented. Most of the time, we want to treat our children equally, but that does not necessarily mean giving each of them the same amount of assets when we die. If you helped one child buy a house and helped another put his children through expensive private schools, you may want to give your other children bigger shares upon your death. Providing some kind of explanation for this can head off hard feelings.

Ask your estate planning attorney to include an in “terrorem” clause in your will and trust. As you might guess from the name, it is intended to strike terror into the heart of anyone who might be inclined to contest your estate plan. The clause can be as detailed as you like, but at a minimum, you might want to say that if anyone questions your competency or the validity of your estate plan after you are gone, they had better prove their case in court, because otherwise they will receive nothing from your estate. This kind of language can discourage many problems, but it still does not guarantee that no one will call your bluff.

Acquaint your children with your estate plan. Make sure they understand that you are not giving up your right to change your plan in the future, but are simply giving them an idea of how your estate plan may look upon your death. Whatever you do, don’t use the explanation as an opportunity for manipulation. You may have heard the story about the lady who privately told each of her children, “When I’m gone, you’re going to get the house.” She hoped to assure that her children would treat her well during her lifetime. You can imagine what happened when she died and her children found out that the house went to Mom’s favorite charity. The biggest beneficiaries of that estate plan were the lawyers who represented the charity and each of the children.

Most of the time, estates pass from generation to generation without conflict or hard feelings, but the subject deserves some thought if you have reason to believe that your loved ones will not see eye to eye.

SCOTT MAKUAKANE, Attorney at Law of Est8Planning Counsel LLLC, specializing in estate planning and trust law.

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