Where There’s A Will, There Can Be A War

By Gary M. Stern, Next Avenue

Robert, the older brother, and Lon, the younger one, were close as they were growing up in the Queens borough of New York City. But when their mother passed away and left the bulk of her estate to Robert, Lon was devastated.

Feeling betrayed by his mom and livid toward his brother, Lon wanted nothing to do with Robert anymore and ultimately moved out of New York to keep his distance from him.

Wills and estates have a way of disrupting families. But what can a parent do to avoid such enmity boiling over between surviving siblings? Experts say that making plans and discussing them openly can assuage hurt feelings when parents opt to distribute their estate unevenly among their children.

“If sibling inheritance is uneven, it always leads to poor feelings [that] one sibling is better off than the other,” says Lorenzo Angelino, an attorney with the Angelino Law Firm in Poughkeepsie, New York. “It’s generally not a good idea to split an estate unevenly.”

Melissa Langa, a partner at Bove and Langa, a Boston-based trust and estates law firm and co-author of “The Complete Book of Wills, Estates and Trusts,” said uneven splits remind her of the comedian Tommy Smothers’ running gag with his brother Dick: “Mom always liked you best.” Psychological wounds linger for decades; some justifiable, some exaggerated.

“A child always wants to be treated equally,” Langa says.

Wills have a way of frustrating that desire for equality among siblings. If the oldest child works in the family business and receives full control of it in the will, siblings who inherit only, say, nonvoting stock, are likely to feel slighted, even if they’d never set foot in the business.

Alternatives to Acrimony

How can you avoid this? The parents could name the siblings as beneficiaries of a life insurance policy that would pay each of them an amount equal to the value of the stock passed on to the oldest child. In this way, all of the children would be satisfied and feel that their parents treated them fairly, Langa suggests.

Often, if one child lives close to the parents and actively cares for them in their later years, the parents leave that child the bulk of the estate. In such cases, it’s important for parents to explain their reasoning to their children who live far away and weren’t actively involved with their care.

Organizing a family meeting, either in person or on Zoom, to explain why the parents made their decision on the will in advance “can minimize or eliminate the bad feelings,” Langa says.

Sometimes, depending on family dynamics, an estate lawyer may be the best choice to orchestrate the meeting because an attorney can serve as a neutral force to explain the inner workings of the will. Nonetheless, Langa says it is not always easy to assuage hurt feelings. “If everyone’s been fighting for twenty years, they’ll likely fight for the next twenty years,” she says.

You May Need Professional Help

In those cases, it might be worthwhile to hire a family mediator who has training and experience in handling deeply rooted animosities. You can find a certified mediator near you on the website of The Academy of Professional Family Mediators.

One way to anticipate hurt feelings and devise solutions to avoid them is to try viewing the inheritance from every family member’s viewpoint, Langa says.

Some states, but not all, discourage fights over dividing up estates by allowing wills and trusts to contain a no-contest clause. It forbids beneficiaries to receive any inheritance if they challenge the will after the benefactor dies. If, for example, one child receives 70% of an estate and another gets 30%, the second child could lose even that smaller share by contesting the will.

Uneven Can Still Be Fair

If one child has been employed irregularly, or has mental health issues, and the other sibling is a physician who earns six-figures a year, it may be easy to understand why their parents would leave the bulk of their estate to the needier child.

“The parents leave more to a struggling child to make sure they have a roof over their head, and the other child may be relieved so that the sister or brother doesn’t end up on their doorstep,” Langa explains.

Some parents avoid leaving money to their children and bequeath their estate to their grandchildren, to lessen the chances of disharmony; the grandchildren operate as an intermediary and take the onus off of how much money each child received.

Langa adds that heirs and presumed heirs should remember that the lawyer who draws up a will or creates a trust works for the beneficiary, not the children. “I try to understand their wealth and give them options to dispose of their wealth to meet their goals,” she says. “We will discuss the effects of unequal distribution on sibling disharmony.”

Try Talking It Out

The key to diminishing drama is to have everyone talk while the parents are still alive and able to explain their thinking.

“You can minimize the surprise and hurt feelings by talking in detail in advance,” Langa says. “You never know what people are going to fight over.” She recalls two sisters who battled over an old-fashioned push lawn mower, which apparently held a special place in each of their hearts.

Kurt Sommer, president-elect of the American College of Trust and Estate Counsel, a nonprofit association based in Santa Fe, New Mexico, says that, ideally, children aren’t surprised by what is in their parents’ wills.

“The best way to deal with this situation is to create an open dialogue,” he explains. “Establish communication between the parent and children and explain the disparate nature of the inheritance.”

Sometimes that’s not possible because the parents and child aren’t communicating or have cut off dialogue. “If you don’t have a dialogue so people can feel comfortable with the outcome, then you have a problem,” Sommer notes.

A More Effective Approach

When Sommer started practicing law 38 years ago, he said inheritances were most often “kept secret and not discussed and were considered unsavory topics among family members.” But a more effective approach has surfaced, which brings these issues out in the open, and informs the children in advance of what is to come and sometimes involves them in problem-solving.

Herb Nass, a partner at Davis + Gilbert, a New York-based law firm, who specializes in trusts and estates, says that discussing how they intend to divvy up their property is not the only way parents can foster inclusion and acceptance among their children.

“It’s important,” he notes, “to include an expression in the will how [the parent] loves each child equally.”

Moreover, Nass advises clients to ensure that each child inherits some items that make them feel accepted and included. It could be money, but also can be “tangible, personal property, which sometimes has meaning beyond a financial bequest,” he says.

Spotting Trouble in Advance

Nass says lawyers can help clients avert ill feelings among their beneficiaries by noting potential sore spots in draft wills they send to clients. In this way, attorneys make certain clients are comfortable with their decisions and aware of what potential conflicts might arise.

“It should be dealt with objectively and not emotionally, by the client,” Nass says.

He also suggests to some clients that they write a side letter, outside of the will, to explain why one child was receiving the bulk of the inheritance and the other (or others) weren’t.

The bottom line, he says, is that every will should communicate that “the parents love each child equally and the amounts left in the will could be due to different economic considerations.”