By Rosie Wolf Williams, Next Avenue
My mother told me many times over the years that she had a will, and I believed her. When she passed away, we discovered that her will was 40 years old — and completely useless.
To start, she had never signed the copy we found, and the man named to be executor had died a decade before she did. Grandchildren born after she wrote the will were not mentioned, and items left to some people had long ago been passed on to others.
Such problems are not uncommon, because many older adults and their children don’t want to talk about death. Of course, you could simply ask your parents or others about their wishes, but how do you make sure the transition after they have died is smooth, without sounding harsh or greedy?
Who Needs a Will?
“The question in so many minds is, what happens if my parent dies without a will? The short answer is, it depends,” says Rebecca Goldfarb, estate planning and elder law attorney, and cofounder of Goldfarb & Luu, a law firm in Tarzana, California.
“If you die with very few assets and you only have one child, you may not need a will,” she adds. “But what if you have more assets or more children? You have to bite the bullet and have the tough conversations and probably hire a lawyer to help.”
While that may sound unpleasant, she adds, “these conversations can bring you closer to each other in the end.”
David R. York, a certified public accountant and managing partner at the York, Howell & Guymon law firm in Salt Lake City, says it is important for everyone to have an estate plan, especially as we age. And it is essential that everyone should have at least a will in place.
What Wills Can Do
He recommends that loved ones be reminded of these points if they are appropriate to their individual situations:
- If the loved one is a part of a blended family, it’s critical to do planning to avoid either a full or partial disinheritance of a surviving spouse or their children.
- It’s important to prepare a will and appoint guardians if there are minor children or adult children with special needs.
- Wills are especially important if heirs might squabble or if you want certain assets to go to specific people.
- Single people need a plan for their assets, especially if they are in a committed relationship but not married. Some state inheritance laws typically do not provide for a domestic partner.
A will is an important first step to ensure that a relationship is recognized before a loved one dies, so the remaining partner can access their right to property or benefits. If you die without a will or living trust — a situation known as intestate succession — your assets may be distributed according to rules set out in state law, which differ from state to state and may be very different from what you would choose.
Is Their Will Up to Date?
When asked if there is a will created and in place, some older adults will say they are prepared but in truth they are not prepared at all. They may have a will that is old and no longer relevant to their current situation or may have not signed or filed their will and other important papers.
Clarifying the status of older adults’ wills is important to a smoother transition of assets and should be addressed when they are of sound mind and clearly able to make their own decisions about their estates.
“This is always a conversation that needs to be approached with a lot of caution,” says Luciano Grubissich, medical director of Family First, a caregiving benefits manager in Boston, and director of a Latino clinic in the Jamaica Plain neighborhood of that city.
While you need to prepare wills, trusts, financial statements and other documents for the transition of assets, you also should prepare yourself for what may be very difficult conversations with your loved one.
“With somebody that is active and healthy, you can approach the subject more freely,” Grubissich says. “Ask if they have a will, want to have one or what are their wishes once they are deceased. You can also state that these steps are essential to secure his or her legacy and protect their assets from estate taxes and lengthy processes after [their death].”
Confronting Mortality
Before approaching the subject of the will, you need to consider that the loved one may be guarded and resistant to talk about it.
“Nobody likes to contemplate their own mortality or talk about what will happen when they die, especially if they are sick,” says Grubissich. “Once you understand that you can approach the subject by acknowledging that it will be a tough conversation and that they are in charge on when to continue or stop, it may help the conversation go more smoothly.
“It may take several conversations,” he adds, “but once the conversation is established you can offer to be the point person to make all the changes needed to assure a smooth transition.”
Respectfully Discussing a Will
Grubissich offers some tips to approach the topic with your loved one:
- Discuss these issues with your parents with the utmost respect for who they are and have been in your life.
- Empathize with your parents. They are entering a difficult phase in their lives and are no doubt aware of it, perhaps even frightened. Show sensitivity to what they are going through.
- Be very careful to help them maintain their dignity, which they are holding on to very dearly. Don’t push them where they are not yet ready to go. If a topic seems too difficult for them, leave it for another day.
- Offer ideas and options, not ultimatums. Ask for their thoughts on the subjects at hand. They are much more likely to work with you on these issues if they feel that they are an equal partner in the decision-making.
- Start these discussions early. You do not what to be in the middle of a crisis when you have to address these issues. That will not go well.
- If, despite your best efforts, the conversation with your parents becomes fraught, consider bringing a professional into the discussions, someone who is used to dealing with such issues.
- Finally, don’t be discouraged or give up. This is a period of great transition for your parents and for you and it will take time and effort to get it right.
Get Legal Help
It is wise to have a lawyer involved in any legal processes. Offer to arrange or personally provide your parents’ transportation to and from the lawyer’s office. Matters like this can be the most difficult part of the process for older adults with limited mobility. Approach matters calmly, be open-minded and offer solutions to issues that arise.
“I encourage you to find a lawyer you like — yes, friendly, supportive and smart lawyers exist — who will teach you what you need for your specific family,” says Goldfarb. “Find someone who focuses his or her practice on estate planning and not five other areas of law.”
“Make sure they value a lifelong relationship and don’t see this as a one-time transaction with fill-in-the-blank forms,” she adds. “These documents should be modified as circumstances and the laws change. The lawyer should also be detailed, plan comprehensively and administer a lot of estate plans so they can share their 20/20 hindsight with you in their planning. You deserve the best.”
My family’s journey through the process continues. We were able to solve a few problems along the way, and we continue to make progress with others.
We have all decided to spare our own children from having to deal with the same issue when we eventually die. Creating a will of our own, along with ensuring other legal directives are in place, can ease their minds and allow them to move on quickly, and with good memories.