Posted in Triplett & Carothers on July 8, 2021

The death of a family member can bring up tough questions. If the deceased owns a house and land, which of their heirs will get them? Or should they be sold and the money divided up? These are pressing questions when two of the heirs are saying they have fond memories of the old place and want to move in, but three more are saying they need the cash. Here are some tips for preventing these arguments from getting acrimonious:

• Talk to your loved ones about estate planning. This is never an easy conversation, but it’s a necessary one. Only in mystery novels do people have wills that are constantly updated to keep pace with their estates. In real life, most people don’t like to contemplate their mortality and put off making a will as long as possible. This causes problems later on.
• Remember that equitable doesn’t always mean equal. People sometimes assume that the best way to divide an estate is to make sure every share has exactly the same market value. This is wrong for a couple of reasons. One, it means the most valuable assets, like homes and businesses, are always sold. That’s a disappointment to anyone who hoped to inherit them in their original state. Two, it isn’t really fair. Heirs with lower income or higher expenses get the same share as those who don’t urgently need the money, and the person who was responsible for taking care of the deceased isn’t fairly compensated. Talk to everyone about what they feel they need and deserve.
• Don’t let emotions get in the way. In the context of a death in the family, this can be a tall order. Not only are you likely to have these estate planning conversations while everyone is grieving their loss, but they can sometimes bring up decades-old family arguments. Stick to the matter at hand.
• Be aware of how state law treats nontraditional families. The word “children” might seem straightforward. A will might stipulate, for example, that the deceased wished to divide the estate equally among his children. His family may know that he regards his stepchildren as his children or that he has children born outside of marriage whom he wants to provide for. They may also know that when he wrote “my spouse,” he meant the woman who has lived with him for 20 years and not the woman whom he married and then separated from in the late 1990s without ever filing for divorce. But if those idiosyncratic definitions don’t match up to statutes in the state where the will was filed, the family will be tangled in endless legal red tape.
• If there’s no will, consult a lawyer. An intestate death complicates matters even further. In those situations, state laws tend to divide assets based on a percentage structure, with some going to the “spouse” and some to the “children.” But as we’ve already said, there’s more to either of those terms than meets the eye. The government is skeptical of nontraditional family members who turn up after a death saying that the deceased would have wanted them to be provided for. Talk to a lawyer to understand your options.

The period after a death is complicated in the best of situations. It’s the responsibility of everyone involved to make sure the estate is divided in an equitable way. And one of the best ways to do that is to use wills and trusts — and family communication — to make sure there are no surprises when it’s too late to explain.

Reach out to Roz Carothers and her team at Triplett & Carothers to learn more.

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