By Lorraine Anderson Levine, Esq
May 2003
Estate planning, unlike a will, plans for a person’s life rather than their death. Planning for the time when we may no longer be functioning at full capacity is difficult. It is hard to predict all of the possible issues and concerns that may arise as we age. Even more difficult is trying to anticipate how family members will fit into the plan – both as health and legal decision makers and as beneficiaries of the estate.
There are times when a well intentioned estate plan does not reflect the current-day needs of the intended parties. Sorting out the issues and interests of everyone involved may require delicate treatment. A trained mediator can help a family work though some of the personal issues and interests that stand in the way of family harmony.
An illustration:
In 1985, when Max was planning the distribution of his estate to benefit his five children, he wanted to divide his wealth evenly and fairly among them all. His business was good and he and his wife, Marion, were in good health. Three of the children were already grown with families of their own; the two youngest children were in college and well on their way to success. Of course, there were some special circumstances. His son, Jeff, worked in the family business and was just about running most of the company. His oldest child, Sarah, was divorced. She and her daughters lived across the street, in a house that Max owned. Sarah worked, but Max paid for her expenses and tuition for the girls’ school. Nevertheless, Max’s and Marion’s will divided their personal estate equally among the five children. The business was left to Jeff and the house Sarah was living in would be deeded to her at Max’s death. Eight years later Max died; his wife, Marion’s health began to deteriorate after Max’s death.
Recently, Max’s youngest daughter, Julie asked for mediation assistance. She does not think that her parent’s estate plan provides for a fair division. Although, she does not want to alienate her siblings, she thinks that she is entitled to more than a fifth of what is left in the bank when he mother dies. She wants the family home to be deeded to her. In exchange she will continue to provide the support and care she had been giving to her mother for the past 8 years. Her father had been discussing this plan with her before his death. Marion agrees that this would be a good plan and wants to change her will and deed the house to Julie. Julie is considering quitting her job and moving her family into her mother’s house to help full time. However, Marion does not want the other children to be upset. She relies a great deal on her older children for advice.
The other siblings are not in agreement with this plan. The house is still very valuable, while the rest of the estate has been significantly reduced. Marion needs costly care and assistance despite Julie’s help. Julie works full time and has two small children. Sarah feels that Marion will be better off in an assisted living facility and the house should be sold to fund these costs.
The family agreed to try to mediate this dispute. They are a loving family and do not want differences of opinion to place a wedge in their relationships.
The mediator began by trying to sort out the issues in dispute. Julie feels that the older siblings benefited from her parents good fortune in the better years. Her sister, Sarah, has had a house provided for her. Her brother, Jeff, owns the family business and lives extremely well. Her middle brother is a physician and his four children have benefited from large gifts and assistance from her father. The brother closest to her age stands to lose the most.
The mediator met with the family together and individually. The mediator was able to help them sort out the best plan for their mother, Marion, and the disposition of her estate. Marion was very willing to re-write her will and estate plan to reflect the agreement that the family drafted. The agreement document was reviewed by the family’s attorney and documents were drafted and signed.
Without a mediator’s intervention, the family was destined to be confronted with overwhelming choices and decisions. Relationships would have been forever strained in the struggle to prove who is right.
With the help of the mediator, the family was able to reach a mutually acceptable agreement. They now focus their attention on their aging mother and enjoy their family relationships once again.
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