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Tuesday, January 17, 2012

Beyond a will: filling an emotional gap

As a lawyer, my job is to find legal solutions to problems and to put legal plans into place to prevent legal issues from arising. But one thing I know for sure about estates is that there is so much more to them than just legal issues. Sure, there are financial and tax matters to deal with too, but what I'm really talking about are the human issues. The interactions between beneficiaries and executors, and beneficiaries with each other.

A legal document can only do so much. It can appoint an executor and outline the legal requirements of the job. Do the inventory, it tells the executor. Pay the taxes. Divide the estate. That's all well and good, but it can't regulate how people treat each other. Where does it tell the executor to treat the beneficiaries kindly and to be patient because they've just lost a loved one? Where does it tell the beneficiaries that there is enough for everyone so there is no need to elbow each other to get a little bit extra? Where does it say that it just doesn't matter that your brother pushed you into a puddle when you were ten and that should have nothing to do with how you act now that you're the executor?

Unfortunately none of this can be found in your will. In fact, the more of this you include, the more you might impair the clarity of the legal intent of the document. For example, today I reviewed a will for a woman who appointed her two daughters as executors "in consultation with" her two sons. Where the heck does that leave the sons in terms of legal authority? Are they executors or not?

I believe the woman in question was thinking ahead, and realizing that her sons would want input into how the estate was to be administered, and foreseeing a bit of a communication issue. She tried to forestall it by directing her daughters to consult the sons. The wording at present doesn't work legally, but that will be fixed. What is more difficult to fix is the communication issue itself.

Why do so many executors who are otherwise rational people behave like little Napoleons once they are appointed by a will? Why do so many beneficiaries expect their inheritance within days of someone passing and throw temper tantrums if they don't get it right away? Why are so many families turning on each other? It's sadness and shock at losing someone, I believe, magnified by the stress of being tossed into an unfamiliar legal, financial and emotional situation. Add in a few childhood rivalries and a healthy dose of family politics and the result is a witch's brew of an estate.

I know it isn't strictly my job as a planning lawyer to do anything beyond create the legal documents necessary. Back in the days, not so long ago, when I spent my days probating wills and administering estates, my job was still restricted to legal procedure. But I've always found it hard to stay within those parameters when I see families upset, angry and lost during an estate. I've always done more. I've taken executors out for lunch and beneficiaries out for a beer. I've spent hours talking down sobbing family members on the phone late at night. I've fetched hot blankets for dying people in palliative care wards and visited clients of all ages in the hospital. I'm not looking for a medal; plenty of other lawyers and trust officers I know do the same things. My point is that during an estate situation, people need comfort, kindness and information beyond what's in a legal document, and they usually don't get it.

But if it's not my job, whose is it?

I believe the unwritten role of the executor and the beneficiaries is to be co-operative, patient and above all, kind to each other. It's their job to get along and to treat each other with respect. However, I've been around this business long enough to know that generally people simply don't behave patiently and respectfully during an estate, family or not.

Too bad there isn't a legal document that removes executors who act like jerks and beneficiaries who behave like children. I'd be glad to draft one up.

1 comment:

  1. Hi Lynn,

    Great article. I guess that is the reason we have laws; to force people to behave better.

    Thank you for your site, it gives encouragement to those of us who just want to do the right thing when having to deal with what can be a difficult time in life.


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