It has been 20 years since I wrote my will. At the time, my children still lived under my roof, so the exercise was fairly simple. My attorney filled in the blanks on a boilerplate document that satisfied our needs. Today my children are all fully formed adults, successfully making their way in the world and it's time for a rewrite.
While all five are gainfully employed and no one is asking Mom to float any loans, their salaries vary widely. As I sit down to draft a new document, it occurs to me that deciding how to distribute assets may be more complicated now. Should I divide my finances equally among all five of them, or take into consideration their current incomes and earning potentials?
“"The best thing you can do to not cause any heartache or grief is to communicate."”
Two are married; one has two children of his own. How do I decide who gets which piece of jewelry and the few canvasses and other art I've acquired? Jake wants the family china, but what if one of his siblings also wants it? And what of the babies — the ones already born and those to come? What family treasures will be passed to them?
Craig Parker, assistant general counsel at the digital estate-planning platform Trust & Will and a California State Bar Certified Specialist in Estate Planning, Trust and Probate Law, says that while it's typical to divide assets equally, some families make decisions based on the needs of their individual children. "Legally you can do whatever you want," Parker explains. "Ultimately, what you choose to do should be based on your values and what you feel is right."
Articulate Your Values
"You may think your children already know your values," says Parker, who recommends beginning your estate planning with a discussion among family members about those values and your personal philosophy. "It's important to articulate your values as a way to reinforce who you are and how you've lived. If you do, no one will be surprised by the decisions you make in your planning."
“"Use simple phrases to communicate 'I thought about this, and this is what I'm doing.' "”
Some parents are afraid to engage in this conversation. Death, although inevitable, is an uncomfortable subject. Yet, licensed marriage and family therapist Stephanie Hanger, who is in private practice in Los Angeles, says you can make it playful.
"The issue around wills and passing on belongings can create a lot of tension," she explains. "The best thing you can do to not cause any heartache or grief is to communicate. Be open and transparent about your decisions. Create an experience that feels inclusive for all family members. Keep it fun, playful and engaging."
Put It in Writing
Because a will is a legal document that will be available to the public, it's probably better to state your wishes succinctly without a lot of explanation. "Simply say something like, 'Having thought carefully, I've decided to leave gifts to so and so,' " Parker suggests. "Use simple phrases to communicate 'I thought about this, and this is what I'm doing.' "
“"A nice note about how proud you are is more valuable than all the millions of dollars you might leave them."”
In a second, less formal document — known variously as an ethical will, a memorandum of wishes, or a letter of instruction — you can get personal. In this private communication, which is not legally binding, you can explain how you made decisions about the distribution of assets.
"It's as personal as the individual writing it," says Paulina Mejia, national fiduciary counsel at Fiduciary Trust International. "It's a way to explain how you arrived at your decisions around your estate that's really helpful in communicating your wishes to your children. We have seen that it reduces fighting, resentment and discord in families exponentially."
Fair Is Not Always Equal
One directive in my ethical will is for my children to avoid disagreements. That is possible even when assets are not divided equally.
"The temptation is to say everybody's going to get an equal share, but sometimes that does a disservice to really being equitable and fair in your estate plan," Mejia says. "Fair is not always equal and equal relationships don't necessarily mean equal inheritances."
Mejia advises taking into account each child's earning potential, their state in life, how they manage money and what additional needs they may have. "Once you do that, communicating the why and being transparent about it is just as important," she says.
“"Most plans are drafted with a lot of flexibility because things can change pretty quickly in a family with multiple children."”
But where beneficiaries are today may not be the same place they will be when the will is executed. It is prudent to revisit and update the will every few years. "There's no formula," says Mejia. "Most plans are drafted with a lot of flexibility because things can change pretty quickly in a family with multiple children. When something feels significant, you may want to make revisions that continue to line up with your intentions."
No Surprises
As I write my new will, I fully intend to share it with my children before my passing. Parker says, "Don't leave it as a surprise to be read when they're grieving. Start to talk openly now so that when they read the will it will be a confirmation of the many discussions you've already had."
He also recommends thinking about how you'll distribute those items that may not have monetary value but do have deep sentimental value. He even suggests writing a personal note to each family member. "It's very rare that people write a sincere note as part of their estate planning," Parker says.
"When you think about it," he adds, "what you want to leave behind is much more than just a dollar figure, isn't it? A nice note about how proud you are is more valuable than all the millions of dollars you might leave them, and when they're grieving, having that paper in their hand to read and reread really matters."