Should I tell my children what’s in my will? Should I discuss my estate plan with my family?
I’m an estate planning attorney. I spend every working day writing, interpreting, or administering estate plans. Unfortunately, despite the legality of nearly all of the estate plans that I encounter, many ultimately fail. I want to talk to you about one of the main reasons that your estate plan could fail. And, why you should always discuss your estate plan with your family.
(If you don’t already know, I am an attorney, but I am not your attorney. Nothing in this article is legal advice and does not constitute an attorney-client relationship. Please always contact your own attorney to discuss the specifics of your own personal circumstances. Further, this site uses affiliate links from which I may receive a commission if you make a purchase.)
What happens after you make a will?
Mom and dad sit around my conference table signing documents, making financial decisions, and showing their IDs to a notary and the witnesses present at the signing. I collect the documents, check for complete signatures and ask how many copies they want.
As the copies are running, I talk to the family about one of the most crucial steps in creating their estate plan. Although they have already created their trust, signed their wills, and appointed their power of attorney, I always recommend one final and very important step: talk to your family about your plan.
To be fair, many families come to my office with their children, their siblings, or their friends in tow. Sometimes parents use the meeting in my office as a chance to air any grievances, explain their wishes, or allow their children to ask questions. Some people actually discuss their estate plan in my law office with their families.
However, some families come to me glad that they will be long gone when the time comes for their family to read their will.
Some clients flat out tell me that they will never discuss their estate plans with their family. Although you are under no compulsion or obligation to share your estate plan with anyone else, I use this opportunity to talk about an important estate planning step. I usually explain to them that the most important step after signing the documents is to have a conversation with family and designated agents. Why? Let me tell you!
Why should you talk to your family about your estate plan?
If the documents are all signed and everything is legal, then why in the world would you need to talk to anyone about your incredibly personal plans?
1. Talking to your family about your estate plan protects your wishes.
Because estate planning is such a difficult topic for many, some people who leave my office promptly take their documents and bury them in a drawer at home. Others proceed directly to their super-secret lock box.
The problem with both of these locations is that no one will be able to find your estate plan. If you put your will in a drawer along with your old nails and broken shoelaces, then it is likely that by the time that someone needs the document, they won’t be able to find it much less read it.
Further, if you put your will in a secret secure lockbox, then who will be able to access the lockbox upon your death? You have the only key? Yours is the only name on the account? How would a child or a family member even know to go look for it, much less access it?
This has happened so frequently that many states have actually had to enact legislation to allow family members to search for and drill lockboxes to search for a will. This might mean that a child had to first pay an attorney, then get a hearing before a judge, then win the case just to possibly find a will in a possible lockbox. What a waste when discussing your estate plan with your child would have accomplished the same goal.
WHAT I RECOMMEND INSTEAD
Instead, tell your family where your estate plan is. Lock it in a fireproof safe, and let a trusted friend, child, or other family member have the code or duplicate key. Then, when the time comes, they will be able to access the document and any other important paperwork in a safe and convenient location.
Further, don’t trust that your attorney will still be in business when you die. I have wills that are more than 30 years old in my office, but I get calls all the time searching for wills from the attorneys who worked in my office long before I was born.
Attorneys lose things, shred old files, move offices, retire, and, yes, even die. Knowing that your estate plan is in a safe place ensures that you and your family will be able to find it when the time comes so that your wishes are honored.
What Happens if they can’t find the will?
If your family can’t find the will, even if they knew what your wishes were, you will die intestate –meaning without a will. This means that all the careful thought and planning that you put into your estate plan to protect your nearest and dearest loved ones goes out the window.
When you don’t have your will, then the state makes a will for you. Every state has an intestacy statute that determines the line of succession for your debts and assets after your death. Some states favor spouses, other states favor children, but all states fail to personally tailor their statute to you.
In the case of intestacy, your wife might not receive the fortune that you have spent your entire life building. In the case of intestacy, your children might not receive the specific assets you prepared for them. And without a will, you cannot create any specifically tailored gifts for any specific person or charitable entity. You won’t be able to make sure that heirloom jewelry stays in the family, that the land isn’t sold, or that your collection remains intact.
Don’t just make the documents; have the conversation with your family about where you put them!
(On a separate note, having a will might also require that you consult a premarital agreement. To read more about why you should consider a premarital agreement as part of your estate plan, read here.)
2. Talking to your family about your estate plan guards against will contests and arguments.
In my office, the number one tell-tale sign of a prolonged and expensive probate estate is when the beneficiaries bicker and fight. (If you are looking for information about probate, click here.)
In my experience, the number one reason for the bickering and fighting is that the children are somehow surprised by the amount of money and the way that it is divided.
When the children are blindsided by your decision to leave out a child, your decision to divide unequally, or your decision to include the grandchildren, they immediately blame me. They automatically assume that I wrote it down wrong, that mom and dad were not in their right mind when they made the decision, and that a grave injustice has been committed.
They proceed directly from my office to another attorney’s office and file a lawsuit to challenge the will, challenge the distribution, or prove that the parents had far more money than they actually did.
Now, instead of your life’s earnings being transferred to your children, it is transferred to the handful of attorneys who all charge $300 per hour to read the same will and argue all of its merits and potential downfalls.
Now, instead of your children enjoying a vacation together on their inheritance or sitting down to a holiday meal, the rift of your decisions and secrecy have torn them apart forever.
Sadly, families that begin to fight about an estate rarely come back together. Though they spent much of their lives as best friends, now they blame each other for your lack of planning. Now, they fault each other for your decision.
Talk to your children about your decisions before you die so that you are able to actually transfer your gifts rather than pay an attorney.
3. Talking to your family about your estate plan prepares them for emergencies.
Maybe you aren’t concerned about estrangement or actually locating the documents. However, you should be concerned about who will respond in an emergency situation. You should discuss your estate plan to ensure that your family is prepared for an emergency.
As part of your estate planning process, you will need to appoint a variety of people for a variety of roles.
- Your power of attorney needs to appoint an attorney-in-fact to make financial decisions in the event of your incapacity.
- Everyone needs to have a healthcare representative appointed to make medical decisions in the event of incapacity.
- You must appoint a guardian for your children in the event of your death.
- And, you need to appoint an executor/executrix/personal representative to administer your assets after your death.
Each of these people has a special role to fill and important responsibilities. In the event of an emergency –an accident, your death, etc.—you want these people to know that they must respond.
You need to have a discussion with your appointed guardians that you expect them to show up for your children. Your agents appointed in your powers of attorney will need to know what you expect them to do with your accounts and your healthcare decisions.
Further, your designated representatives will need to know where your accounts are, whether you have an advance directive, and whether you have other special medical requests. Having this conversation in advance will allow them to not only prepare mentally and emotionally for the burden of your care but to be able to spring into action if an emergency occurs.
Talk to your family and appointed agents about your estate plan to be absolutely certain that they will respond to you or your children in the event of an emergency.
Talk to your doctor and financial institution too.
In addition to your friends, family, and children, you should also discuss your estate plan with your physician and financial advisor.
I recommend that everyone take a copy of their healthcare appointment to their general care physician and a copy of their financial power of attorney to their investment advisor.
This way, important professionals in your life already know what your final plans are. Further, they will know who to call in the event of an accident, who can sign on your behalf, and what the powers are for those individuals.
Your powers of attorney generally only spring to life in the midst of a high stress, emotional time. Therefore, the last thing that your agents want to be doing is sifting through your paperwork looking for your signed powers of attorney.
Generally, I even include names, addresses, and phone numbers of designated agents directly on the paperwork so that your physician and investment professional can contact them directly.
In this way, your care and financial security can continue in the event of your incapacity or incompetence. Keeping your professionals looped into your estate plan helps them connect to the important family members, children, or loved ones in your life.
Discuss your estate plan with the important professionals in your life as well as your family.
Talking to your family about your final wishes might be the most crucial step for a successful estate plan.
Although the subject is difficult to broach and the topic is hard for many to stomach, your estate plan is far more effective, if you have the conversation with your loved ones. Discuss your estate plan with them; talk to them about where the documents are, what they contain, and who the agents are.
Having these conversations with your family now can save your estate from prolonged and costly litigation later.
Talking to your family now can ensure that your wishes are carried out rather than kept forever in secret drawer. And, including your trusted professionals can ensure a seamless transition.
I am not suggesting that you pass out copies of your wills and trusts at the next family gathering. But, I am suggesting that you plan an appropriate time to meet with your family to discuss your plans. Setting the expectations out in advance can avoid a lot of cost, broken relationships, and hassle later.
If you want to learn more about what your estate plan should contain, click here.