Keeping the Peace: Minimizing Family Disputes Through Estate Planning

While advising a couple about how to pass on the family’s real estate business to their grown children, estate planning attorney Stephanie Heilborn met separately with them and their children. Among other things, Heilborn explained how certain documents could allow the siblings to opt out of direct involvement in the company in the future if they chose to do so.

“The parents were not in the same room with the children, so the children felt safe asking me questions about how the whole document might function. And sometimes the children might have excellent and perceptive views on how things might go,” says Heilborn, who practices at Proskauer in New York City. “It can be a valuable exercise. When I’m working with the parents, I’m of course only getting one side of the story.”

If done right, estate planning can help prevent potential conflicts that could arise when you’re no longer around to referee. And it isn’t just about distribution of assets.

Estate Planning Helps Reduce Family Conflict

“In my opinion, it’s about keeping families together across generations,” Heilborn says. “Part of my job is to help clients anticipate not only the legal issues, but these emotional and relationship issues that can surface… Sticking your head in the sand does not make the problem go away.”

Deciding who’ll run a multigenerational business is a common sticking point, as is figuring out who will care for aging family members and how to divide property if you divorce or remarry. “And last but not least,” adds Heilborn, “There are the family heirlooms. There is always something that people will fight about, whether it’s the engagement ring or the pearl necklace or the one valuable painting that was inherited from Grandma. Dividing those up is not easy.”

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Address Who Will Be Appointed To Do What in Your Estate Plan

One of the first things you should address is who will be appointed to do what:

• To serve as guardian for your minor children if you die suddenly
• To make end-of-life decisions for you as your health care proxy
• To serve as an agent with durable power of attorney for financial matters
• To operate your business without all the “Succession”-like drama

Be Mindful That Family Relationships Can Change

“Many people ask: What is the involvement of family members in an estate plan, or is it a good idea to get my children involved in my estate?” says Mary Croly of McLaughlin & Stern in New York City. “The answer gets complicated and may not be what clients want to hear… Any such discussion with family members could jeopardize and undermine carrying through the ultimate wishes and goals of the client’s estate plan.”

This is especially true if your wishes change over time. Croly gives the example of a mother who sends a copy of her will to her son, the only designated beneficiary, but later has a falling out with him, disinherits him, and names her daughter instead.

“The son may contest the new will, alleging that his mother lacked testamentary capacity when she signed the new will, and ask that the court probate the old will. The son could also allege that his sister unduly influenced his mother to change her will. Family relationships may change over time, and it’s in the best interests of the client to keep her will private until her death.”

Avoiding Pitfalls in Estate Planning

What’s more, says Heilborn, “Estate planning ‘by committee’ — I don’t think that’s productive. Part of my job is helping clients decide when and how to bring the family into the process.” 

This may involve separate conversations with you and your heirs. Even with attorney-client privilege, it’s OK, with your permission, for your lawyer to answer basic questions and explain facts in an unbiased way. “Although I don’t view my role as mediating among family members, I do think clients expect me to guide people through the human side of wealth transfer,” says Heilborn. “Listening is important.”

It’s up to you to be truthful about family dynamics. “One of the things that’s hard for a parent to admit is that there are strained relationships, whether it’s between the parents and the child, or among siblings,” Heilborn says. “If the parents are not honest with me that conflicts exist, it’s hard for me to have an effective response. 

“It is also my job to be honest with clients, to give them options, to talk through the process, to offer to help them navigate this journey. Estate planning is not just one and done. It’s an evolving process throughout a lifetime, and because relationships can change, the documents can change.”

Find an Experienced Estate Planning Lawyer for Legal Advice

Having a clear estate plan is key to avoiding legal battles and hurt feelings with loved ones. Visit the Super Lawyers directory to find a local estate planning lawyer for help creating a comprehensive estate plan.