Salt Lake Tribune
on 'who gets what' can head off sibling fights
The Salt Lake Tribune
e-mail from the woman beseeching the lawyer for advice was
plaintive, the situation sad.
Her mother died of colon cancer without updating the will
she had written five years earlier. She left behind a wealth
of jewelry to the married daughter -- none to her two sons,
two daughters-in-law or two young granddaughters from her
sons' marriages. The brothers are mad, writing nasty e-mails
demanding that their sister divide the jewelry with them,
otherwise they want financial compensation from their father.
mother's friends were witness many times to my mother saying
she wanted me to have her jewelry," the daughter wrote
to attorney Barry Fish, signing her e-mail only as JM. The
daughter gave some jewelry of lesser value to nieces and sisters-in-law
and in her own will plans to divide any remaining heirloom
jewelry among her daughters and nieces.
mother always said that my sisters-in-law had their own mothers
to inherit jewelry from and that I only had her. I am so confused.
Can anyone help?"
Welcome to a world where families often are torn apart when
a well-meaning parent assumes that his or her grown children
will play nice when it comes to who gets what in a parent's
last will. The parent may unwittingly sow the seeds for a
fight that can destroy the family.
have this view because their children are their children,
they won't fight," said Les Kotzer, attorney and co-author
with Barry Fish of The Family Fight: Planning to Avoid It.
He has seen brothers and sisters at each other's throats,
family relationships ripped to shreds along with the family
assume good will between your children," he advised,
and don't rely on them to fairly distribute the assets.
you were to say 'I'm going to leave it all to [my son] Billy
and he'll look after [his sister] Mary,' what if Billy dies.
Will Billy's wife have good will toward her sister-in-law?"
Perhaps Billy has financial problems and opts not to help
his sister, whom he believes will squander money that he could
use to pay debts, Kotzer said.
are elastic," said Kaysville attorney Trent D. Nelson,
who specializes in family wills and trusts. "They're
always changing. You don't know what financial consequences
they're going to run into in their lives."
Math and emotion: A parent may try to be fair by splitting
things evenly, using mathematics instead of emotion to distribute
money, mementos and other assets. However, if one child is
the caregiver, emptying bedpans and chauffeuring the parent
to doctor appointments and the other children are rarely around,
the result is inadvertent inequality, Kotzer said. In the
case of the caregiver, he recommends telling family members
that the caregiver is receiving a little more as a show of
equal is not always fair," Kotzer said. "The phrase
'they'll work it out' really shouldn't be in a parent's vocabulary
when it comes to estate planning. This is a very poor way
of thinking" because lawyers, not family members, will
be forced to work it out, he said.
Consider whether you should split things evenly even though
you already helped one adult child financially -- with college,
with a down payment for a house, with free room and board
-- and not the others. That can create bitterness among siblings.
Parents and adult children need to talk, Kotzer said. The
discussion doesn't have to take a "gimme" tone;
instead, focus on the importance of having an up-to-date will.
Discussion also can be prompted by asking the parent if he
or she has established a power of attorney in case of a debilitating
illness, Kotzer said. That choice should be discussed; an
adult child may not want sole responsibility and does not
have to accept the appointment.
Leaving instructions: Most people think only the rich need
a will, Kotzer said, but it is important to designate how
any assets and sentimental items are distributed. He told
of a mother who thought she was avoiding a family fight by
designating that all her personal possessions were to be sold
within 30 days of her death and the money divided among her
The woman's daughter wanted a crystal vase that she had taken
great pains to buy for her mother, but her brothers, as executors,
were following their mother's will to the letter. Furious,
the daughter removed the vase from her mother's house and
smashed it in the parking lot as Kotzer, who was handling
the estate, watched.
nobody can have it,'" Kotzer quoted her as saying. "You
could sense the hatred that was starting [because] her brothers
wouldn't give it to her," he said, noting that "a
will . . . is written in stone, so you better get it right
and better put some thought to the wording in that will."
The vase incident could have been avoided if the parent had
talked to her children about her plans, asking if there were
specific items that they wanted that would be excluded from
an estate sale.
The parent should also consider how disinheriting a family
member will affect that person's relationship with the rest
of the children, because they are the ones who will have to
deal with any emotional fallout.
Carefully weigh who to appoint as executor.
they pick the person who has the most street smarts, sometimes
they pick the person who has the most legal experience or
the most business experience," said Nelson. "That
might be the worst person to choose if the person . . . is
Logistical planning: Consider, too, where that person lives.
If the child you most trust to be the executor lives in a
distant state, it is not going to work if there is a complicated
estate that is going to take several months to administer,
This causes logistical problems and can place a financial
burden and stress on the executor who has to take time from
work to travel to handle the estate. That person also is entitled
to reimbursement for expenses, so travel expenses may eat
up the estate, Nelson pointed out. While executors are entitled
by law to fair and reasonable compensation, many waive payment.
That often helps build credibility in families where someone
doesn't trust the executor.
Also, rethink appointing a daughter- or son-in-law as backup
executor, Kotzer cautioned. A child's marriage may not be
permanent and an ex-family member could end up overseeing
the will. Nelson also advised not having co-executors, which
require both parties to agree on everything that comes up.
Many fights are over small things that never go to court,
such as who pays the freight on a piano that was left to a
relative who lives across the country, Kotzer said. He recommends
an explanatory letter or videotape that supplements the will,
specifying why certain items go to certain people.
explanatory letter] takes a lot of the burden from the child
who gets [the item]," Kotzer said.
Personal property lists: In Utah, a personal property list
that outlines specific bequests may supplement a will or trust.
The list must be referenced in the will and cannot include
bequests of money, stocks or real property, such as a cabin.
Include enough detail -- such as "grandmother's diamond
engagement ring" -- so it is clear which item is being
given to whom.
personal property list can say 'I want this antique sewing
machine to go to Joanne,' " said Nelson. "It's not
like a will where you have to redo it . . . you can update
that without having to go through an attorney."
Nelson emphasized the importance of considering potential
land mines when writing a will and how to deal with them.
almost have to consider worse-case scenario," he said.
Consider giving the executor the discretion to sell an item
if an argument ensures over who is entitled to a particular
you know everybody loves your spoon set that came over from
Norway, consider who you want that to go to. It's going to
be a lot easier for them to accept a decision that Mom made
versus a decision that the [executor] made. If you anticipate
problems . . . over specific items, be very clear about it."
An attempt to avoid tax liabilities can also sow the seeds
of a family fight, as happened when a parent stipulated in
his homemade will that one son inherited a bowling alley.
Everything else, including property the bowling alley sat
on, went to other siblings. They became their brother's landlords,
and urged on by their spouses, raised the rent where their
brother lived and created a family rift.
Expectations: Kotzer also is seeing more adult children who
feel entitled to the fruits of their Depression-era parents'
generation was a saving generation. They were the coupon cutters.
They would keep the same car for many years, whereas my generation
are sort of the spenders. We grew up in the '70s and we have
to have the latest technology, the latest fad. Our parents
were always the ones saying 'save your money, wait for a rainy
day,' " he said.
Kotzer recalled one client who arrived at his office driving
an expensive car, wearing designer clothing and a Rolex watch.
The client had lost everything in the dot-com crash; he was
now a "waiter" but Kotzer was puzzled. How could
he afford such a wealthy lifestyle if he was waiting tables?
Turns out he was waiting to inherit his parents' assets.
is an assumption out there that what was your parents will
be yours, and will be yours equally with your siblings. This
is where the problem comes in," Kotzer said. Things turn
ugly when an adult child doesn't receive what he or she expected.
That problem can be avoided by being up-front with the children
so there are no presumptions.
Remarriages also can pose problems for parents who intend
to leave their children everything, but "everything"
-- home, bank account, insurance and pension -- is jointly
owned by the surviving spouse. Those partners receive a windfall
because the deceased spouse didn't understand that everything
that is jointly owned goes to the surviving spouse, regardless
of the will, Kotzer said. If that new spouse later dies without
updating his or her own will, family possessions intended
for one set of children instead are passed onto the new spouse's
Parents should be aware, too, of the consequences of holding
a joint bank account with an adult child. Often this is done
because it allows the child to conduct bank business on the
parent's behalf. When the parent dies, that child receives
everything in the account.
The potential for warfare over a will can affect any family.
Multimillions do not have to be at stake. Nelson recalled
three sisters who fought for more than a year over the small
estate of their father, who died without a will.
never mourned the passing of their father. They got so caught
up with fighting with each other that they forgot that they
lost their father," he said.
average family doesn't understand how close to the line they
are. It doesn't take much for the family to be destroyed,"
be organized," Nelson said. "Doing nothing is the
best way to have problems."