Loving Legalities

Dedicated to the late Derwood Rush Linzay

My father was only 48 years of age when he departed from this life. I was 22, had completed college, and was going to law school in a couple of weeks. I had talked to my father about making a will, but he was in the prime of his life and seemed to be a specimen of health. He always felt we would do the right thing because "he reared us right." He was right we did. Mother continued to enjoy all of the property and assets that they had accumulated together during the sharing of their lives. Seventeen years after his passing I performed the succession work pertinent to his estate. It was only then that my mother was ready. We never pressed her on the matter. She still lives in her and daddy's home... her home. I believe each of my siblings know that what a husband and wife earn together is rightly theirs, and belongs to the surviving spouse. As daddy said , "he reared us right."

Unfortunately, as I have counseled families or one side of the family or the widow, a satisfactory scene has not always unfolded. How often I have been told that all was well until the matriarch or patriarch passed away. The client expresses that he or she just doesn't understand how this situation could happen. However, there are almost always clues that all is not truly well. Parents, not wanting to think less than glowingly of their adult children, often choose not to appreciate the reality that not all children respect their parents and care that they continue to enjoy what they and their departed love earned together. Often dismantling of the home begins with one child or another requesting jewelry, china, antiques and other heirlooms. The bereaved spouse often gives in to such requests or relationships become strained as children become concerned that a future marriage by their remaining parent may jeopardize the ownership of these special items continuing in their family. Uncertainty and mistrust sometimes abounds. All of these matters can be eased and the legalities settled when all parties have a clear understanding of the deceased's wishes. A will or testamentary trust embodies these wishes in a legal way that is honored by our courts. All adults, especially those with children, should consider making a will. It is a loving and responsible way to take care of those that you love.

If you have minor children consider who should rear your children. This has been my and my husband's priority. All else has paled in comparison to this single consideration. Ask, are the persons chosen young enough to keep up with the demands of child rearing? Do they share your values, faith, and place emphasis on the same priorities as you and your spouse? Do they live in the same city and state or will your minor children have to relocate? Will the changes that your children have to make be overwhelming in light of the fact they have also lost their parents? If the custodian(s) are living in a smaller home than the one that you live in, might they move into your home? This may be very reassuring to orphans who have lost their parents and present fewer changes initially. Sit and discuss with the prospective custodian whether they are or are not willing to help your child continue the sport, art, or extra curricular pursuit of their dreams. These represent tremendous expenditures of time and energy. Discuss money and whether the money is to be left in trust with the trustee being a different person(s) than the custodian and the situations that might trigger spending by the trustee in addition to the standard stipend. Life and relationships ebb and flow. Continue to meet with the selected custodian(s) every few years to make certain that they remain willing to rear your children if both you and your spouse die. Perhaps the custodian's situation has changed and new custodians will have to be identified.

If you have a number of children as we do, consider whether you are willing to split the children either by gender, age, or attachment in order to secure the best situation for all of your children. Adults consider reality and make difficult decisions. This may be one that is called for. It may be impossible to find custodians with the essential attributes you are looking for who will take four or more children. If you find it to be necessary to divide your children and are willing to make this call, you will want to have the different prospective custodians meet if they do not already know one another. You should discuss and arrive at some understanding that all of your children will spend time together periodically. Be realistic. This may not mean every holiday and birthday. We can all appreciate how much we are asking of others in the love and care of our children. These commitments are a lot to ask. It took us years to make satisfactory arrangements. Make sure that your prospective custodians really love your children and are people of sound judgment. Finally, if choosing a married couple, carefully consider whether the marriage is stable. I endorse only entrusting your children to a married couple. However, thrusting children into an unhappy home life not only makes for poor parenting, but may actually contribute to a speedy divorce and further trauma for your children. Trust your instincts.

Spouses should be forthright in their discussions about what they desire when one of them dies. Absolute candor about concerns with children is necessary. Then a will and/or trust should be made. Do you desire to continue to call all the shots and control your assets? Are you concerned that in the event of remarriage of your spouse the children of your marriage will be left out? Discuss this and come to an agreement. Life insurance is a great tool that can be used to put aside something for your children while providing continuity and control for your spouse where the home and bank accounts are concerned.
Life insurance payable to a beneficiary, other than your estate, passes outside of the succession and is not taxable. Therefore, make certain that a contingent beneficiary(ies) is listed to avoid the proceeds from the life insurance being included in your estate if the original beneficiary predeceases you. Term life insurance has become more affordable and is a great estate planning tool.

For adult children, an honest discussion is desirable. Parents should verbalize appreciation of difficulties of a particular child's handling of finances, the presence of strife provoking in-laws or children, second marriages, and step-children, to name a few challenges. Very matter of factly express how matters will be handled. Love your children enough to express candidly that because of the difficulty others will be in charge of your estate's finances or legal matters. This approach lets all involved know that you appreciate that not all it absolutely well. You are not in denial and you have chosen to deal effectively and finally with a less than desirable situation. You are sparing your "good" children the onerous burden of having to deal with a mess that you might have sorted out prior to death. They will appreciate the pains that you have taken, I assure you. It is a final act of love and provision to those you brought into the world. Your death will be difficult enough. They should not have to litigate against a sulky or uncooperative sibling or co-heir. Denial is not a herbicide for looming trouble. It is the fertilizer that cause potential chaos to reach full bloom.

I want to share with you that from behind my desk I observe that surviving spouses and children of a deceased person who come to me with will in hand are more poised, calm, and coherent than those without a will. I believe that the simple difference lies in the fact that these clients feel more secure and more certain. They feel that they have been taken care of and that all matters are in order.

Making the difficult decisions, putting them in writing in the proper form, and securing them in a bank box or recording the location of the will can assure a smooth transition for those you care about. I encourage you to tackle this task today for the ones that you love. If you have made this your New Year’s resolution, accomplish this during January.

Alexandria Town Talk            January 2008


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