Even if you and/or your children are all grown-up, you can probably remember scenes of intense sibling rivalry when you or they were younger. In some families, that competition continues into adulthood; for others, it recedes as children age and mature. But it can all come flooding back while trying to divide up an estate after the death of a loved one, as argument ensue over who gets what.

If you die without a will, a probate court will decide, who will inherit your property.  In some cases, the result may be quite contrary to your wishes. Try listing all of the assets you’ve accumulated: perhaps a house, car, jewelry, investments, family heirlooms, and more. Now ask yourself if you want the assets you have enjoyed during your lifetime be turned into instruments of family fighting and financial hardships.  Without a properly executed estate plan these assets may create problems and expenses due to Federal inheritance laws and Massachusetts probate laws which allow for the appointment of strangers to make family decisions.

Many people worry about state and federal estate taxes, but in reality most of us will not have a tax problem as the value of most estates are less than $1 million.  However, the “kinfolk tax’ is a genuine concern. This Kinfolk Tax is the price paid by children, grandchildren and favorite charities when you do not express your wishes legally in a Will or Trust.  This Kinfolk Tax is paid not only with money, but also with hard feelings that can and has destroyed many family relationships.

By simply taking a little time to set your estate in order you can eliminate many squabbles, costs, and preserve family relationships.  Whatever the size of your estate, the first step is to have your intentions put in writing, either in a basic will or a will plus the trust documents that will be needed to carry out your wishes. An estate planning Attorney can help you make the best decisions for your situation.

Once you have a plan prepared, it is important that you discuss it with your family. If anyone has any questions about the details, or any quibbles, you can address them and put to rest any possible squabbles that may arise in the future. While your family should never dictate your actions, they should always be informed about them.

It is also a good time to discuss dividing up personal property, while you still have your mental capacity to do so.  Arranging for the executor in the Will to divide personal property a spouse doesn’t want (such as furniture and jewelry) among children and others has the potential of causing problems. A better alternative is to put together a list with a description of the property and who you would like to have it. You can put this list together with input from your children to alleviate any hard feelings later, and leave it in a safe place with your other important papers.

Putting together an estate plan is not as intimidating as you may think, and it pays in big dividends after you are gone. Not having an estate plan in place can cost your family not only dollars and cents, but also may cost in family conflict.

For many people, the idea of estate planning simply means writing a Last Will and Testament and calling it a day. Unfortunately, there is much more to it than that, and several documents that you need in addition to a Last Will and Testament. I can help you with all of your estate planning needs to make sure that your assets are divided and/or distributed among those you wish to give to and in the amounts and manner you want.  I can help you to protect yourself and your assets before your death with the several documents you should preparein accordance with your personal wishes and needs.

Power of Attorney

Power of attorney gives someone that you trust the ability to act on your behalf should you become unable to do so. Without a power of attorney, the state may decide what happens to your assets even while you are still alive. The agent (person whom you assign to act for you) may make decisions on your behalf and in your best interest about your real estate, finances, and other legal matters. If you appoint a Guardian or Conservator in a “Durable” Power of Attorney document for yourself and the time comes when you may need one or the other to handle your affairs during your lifetime, your family members may not need to go to Court to appoint one, thereby saving your family time, money, and court involvement.

Health Care Proxy with Advance Medical Directives

If you are not able to make your own medical decisions, you will need to name someone to make them for you.  There are fill in the blank documents that will be provided to you in a doctor’s office or at a hospital.  These documents are sufficient if you are in an emergency situation and you have not had an attorney prepare a comprehensive legal binding document for you.  A legally binding Health Care Proxy with Advance Medical Directives prepared by myself will be made specific to your wishes and will be made while you are clear minded, not under the stress of an immediate medical procedure or heavily medicated.  I will discuss with you how you want the last moments of your life to be medically decided, who you trust to make your medical decisions, and what additional medical decisions you would like your trusted agent to make for you, including who you want as your Guardian or Conservator should the time come in your life that you may need one.  I will have notes in your file to verify that you intended to make those decisions, should anyone try to contest the veracity of the document and your mental stability when you signed it.

Last Will and Testament and/or Trust

The Last Will and Testament is the backbone of your estate plan. If you do not leave behind a Last Will and Testament that clearly states your wishes for the division and distribution of your property the state will decide such matters for you. It is a good idea to consult an expert to help you in drawing up a Last Will and Testament that is solid and cannot be contested. I have the knowledge and experience to take care of this with you.

A trust is an alternative way of distributing assets. The Trustor gives the right to hold property or benefits to the trustee, who gives these benefits to the beneficiary per the wishes of the trustor. For example, if you wished to leave a great deal of money to your child, with the limits that he or she would only get small amounts per month until he or she reached a certain age, you would leave the money to a trustee, who would dole out the money according to your wishes. Again, only a competent, experienced estate planning attorney, such as myself, should help you draw up a trust.

Guardianship Designations

Although some Last Will and Testaments contain a clause to cover the care of minor children in the event of the death of a parent, not all of them do. A guardianship designation determines who will care for your children if you should die or become unable to do so. If you do not name a guardian, the state will do so, and their decision may not always be in accordance with your wishes.

It is very important to discuss estate planning with parents and other members of the family while they are all mentally healthy, if families wait to make arrangements until after one parent is incapacitated in some way, it limits their choices.  Talking with parents and other family members about your financial and estate plans could be the catalyst for the others in the family to start thinking about and discussing their own estate plans.  Remember that the discussion may reveal estate plans that you may not like but it is each person’s prerogative to make their own individual plan.  Estate plans do not always result in people being treated equally, it’s very important—to avoid conflict later—that family members know and understand what plans are in place. Here are a few tips to help you, your parents and other members in your family start talking:

Focus on life, not death

While the topics of estate planning and death are intertwined, it doesn’t mean that death has to be the focus of the discussion, rather focus the discussion on planning to live well, instead of planning to die well.

Encourage your parents and other family members to discuss their wishes

It is important that your family discuss what they want to have done and who they want to do it.  Ask your family what it is they would like you and/or others in the family to do in the event of an emergency.  Ask them what documents are needed to assist them properly and where are they located.  If your family member is not able to communicate it is important to know where their important documents are kept as well as the name, address and phone numbers of those who can assist in management of their affairs for example:  Accountant; Lawyer; Primary Care Physician; Clergy; and Funeral Director.  Also, ask your family who they want to make their health care and/or financial decisions, if they are unable to articulate or make them for themselves.  To ensure that each family member’s individual goals are met, all members of the family should be absolutely clear about their wishes and that they want.

The need for protection for the entire family should be emphasized

A formal estate plan helps to protect the entire family from creditors and possible predators.

Encourage parents and all family members to seek expert legal and financial advice

By YOU doing so, you are setting an example while at the same time sending a message that you  trust everyone else to handle their own affairs, this will more than likely help them breathe easier by knowing you don’t want to control the situation. Offer to help them with their search for a qualified attorney.

Be patient and understanding

Be realistic, the initial conversation with parents and other members of the family about estate planning will not be easy and it will not be, nor should it be, the last one. It may take several discussions before even a little bit of headway is made, and even after estate plans are in place, it does not mean that these plans will always remain relevant in the future, it is an ongoing dialogue and process.