Estate Plan Crisis: What To Do When Your Parents Won't Communicate
André is the oldest of four siblings, facing a responsibility none of them want, with little information from their parents
Editor’s note: This story is also the subject of this week’s How To! podcast on Slate Plus, which airs on Tuesday, Dec. 3. Listen to André’s story in their own words — and get details here about estate plan basics. Note that “estate” doesn’t require an actual estate or even wealth. It’s simply your legal plan for making sure your wishes are carried out, before and after you die.
What should you do if your parents have asked you to help manage their estate plan, but they refuse to tell you what their estate plan is — or to answer any of your questions?
This is the Catch-22 that André, a librarian in southern California, has been facing for the last 10 years — ever since they agreed to be the executor of their parents' will. (André is non-binary and uses they/them pronouns.)
"My parents were getting older. I really didn't know what I needed to do — but I knew I had to try to get ahead of it," said André | Credit: Getty
André, who was 44 at the time, was willing to take on the role of executor at first. But as time passed, they began to realize they didn't know what being an executor really meant — or how complicated it could be, given that they knew almost nothing about their parents' assets or their wishes. "They wouldn't even tell me the name of their lawyer," says André. "Even now they just keep saying that everything will be fine because they've set everything up."
Perhaps they were trying to be comforting, but André felt shut out. "My parents picked me simply because I'm the oldest of their four children," André says. "But I have a sibling who is in finance and another in public policy. I'm literally the least qualified for this role."
A Family Crisis Begins to Brew
For a few years, André hoped things would work out. After all, André's parents were still in their 70s and in good health. But André grew more concerned after speaking to a friend and learning that, ideally, people need to include alternates for various estate planning roles in case the primary person is unable to serve.
"My parents picked me simply because I'm the oldest of their four children ... I'm literally the least qualified for this role."
In this case, André knew that each parent held the medical and financial powers of attorney for the other, which is not uncommon. A power of attorney, or POA, is a legal document that names a person or agent who can carry out your wishes — medically or financially — if you (the principal) are incapacitated or unavailable. In this case, the mother would cover for the father if he couldn't make his wishes known or manage his affairs, and vice versa.
But it's critical to have a backup POA, and André knew their parents didn't have any alternates. Meaning: if the father died, the mother would have no one to carry out her wishes if she became incapacitated, and vice versa.
Yet when André suggested that the parents name alternate powers of attorney — maybe one of their other children? — André's father and mother dismissed the idea. "They told me that because I was the executor, I would automatically assume power of attorney if one of them couldn't do it," André recalls.
This isn't true, however. Lucas Spaeth, an estate planning attorney with Thiel, Anderson, Kukla, and Gunderson in Edina, Minnesota, notes that these are separate roles, governed by separate legal documents. The person who is the medical or financial power of attorney generally keeps that role until the principal dies. Then the executor, who is named in the will, generally takes over.
André's parents are not wrong, in that Andre could act as their medical and financial powers of attorney and as the executor of the estate. But they still need legal documents saying so.
"One of them even said, 'I'm glad this is on you.'"
A Sibling Meeting Goes South
A little over a year ago, André decided to discuss the situation with their three siblings and get their help. "I felt wildly stuck," recalls André, now 54. "My parents were getting older. I really didn't know what I needed to do — but I knew I had to try to get ahead of it."
But the response from all three siblings was simply: No. They didn't want to get involved. One sibling had small children. The other had a high-powered career. "One of them even said, 'I'm glad this is on you'," André says.
It sounds extreme, yet Spaeth says situations like this one are not uncommon. In fact, his exact words were: "There are always conflicts with parents around estate planning."
Why?
While the deeper psychology of estate plans, and end-of-life plans in general, is beyond the scope of this article, it's not always due to a fear of death or the unknown. "I hear so many elderly people say, 'I don't want to make an estate plan because I don't want to be a burden on my kids'," Spaeth says. "But that's backwards. Proper estate planning will relieve the burden on your family.
"In a nutshell, estate planning is about making your wishes known, and then giving your children the tools they need to execute your wishes."
"After the estate administration is done, I've heard many siblings say, I never want to see you again. It's heartbreaking."
Unfortunately, many people assume their spouse or children have a legal right to make medical or financial decisions if there's a crisis. In fact, without certain basic documents, your loved one's life (and possibly yours) can turn into a legal snarl virtually overnight.
"We call it substitute decision making," Spaeth explains. "If you don't appoint substitute decision makers privately, then you could get one appointed publicly, and there's a good likelihood you'll end up in court." And if the courts have to step in, that could cost thousands of dollars, he adds.
"So when people ask how they can talk to their parents about this," Spaeth says, "I suggest telling them: Please let me help you to set up these tools, to save time and money."
Spaeth also says it can help to let reluctant parents know that being proactive may prevent family fallouts. "Siblings often fight over their parents' wishes," he says. "And in most of those cases, it's because Mom or Dad failed to write a clear will or trust. After the estate administration is done, I've heard many siblings say, I never want to see you again. It's heartbreaking."
Estate Planning 101
The good news is that for many people basic estate planning doesn't have to be complicated. It does take time. And it may be worth investing in a lawyer to draw up the documents, — or at least review any documents you created using an online estate-planning service, says Spaeth. A few other pointers and strategies for your estate-planning journey:
Be consistent about beneficiaries, titles, and deeds. "It's important that all your estate planning devices are consistent with each other," Spaeth says. "That includes your will, your beneficiary designations, your trust, your transfer on death designations — everything has to agree with everything else."
For example: if you want your kids to inherit your IRA, and your kids are named in your will, but your sibling is still listed as the beneficiary of the IRA, the IRA designation overrides what's in your will. This is also true of life insurance policies, your 401(k) and other accounts.
Update documents if you move to another state. "Ideally you should do your estate planning in the state where you plan to be domiciled at the time of your death," Spaeth says. Domicile is a complex legal term, but essentially you want these estate documents to be in sync with the laws of the state where your primary residence is.
"I'm planning to take some time to talk things through, and hopefully get them to open up a bit."
Set up a legal will. You need a will to name a guardian for minor or disabled children, to name your executor, and to distribute your assets and belongings. Because estate laws vary widely from state to state, make sure your will is written and witnessed according to those laws.
Understand probate. Probate is the legal process of reviewing your will and distributing your assets. Not all estates or wills are subject to probate; it's best to check the probate laws of your state. It's also possible to use certain financial vehicles, like trusts, to keep some of your assets out of probate, so they pass directly to your beneficiaries.
Establish powers of attorney (POA). Again, POAs list the people who can carry out your wishes legally, if you cannot. In legal language, you're the principal, the people you choose are your agents or proxies. There are two primary types of POA: one covers your wishes regarding your medical care; the other gives your agent the right to make financial decisions on your behalf. You can specify what you want your POA to cover.
Without a POA in force, a doctor or member of the court could be called upon to make life-changing decisions on your behalf.
The Next Steps for André
Where does this leave our brave protagonist? Right now, André is hopeful about two things. First, their parents are coming for a visit over the Christmas holiday. "I'm planning to take some time to talk things through, and hopefully get them to open up a bit."
Depending on the outcome of that conversation, André intends to approach their siblings again, but propose a joint effort to coax their parents to iron out any issues sooner rather than later, for the good of all.
That said, it's always possible that André's parents may not want to alter their plans in any way. In that light, André plans to consult with a lawyer in the state where their parents live, in order to gain some insight into what might happen if the situation remains unchanged.
All things considered, though, André is relieved that they've started taking the reins to figure things out. This whole process with their parents, while still up in the air, has also given Andre a little nudge regarding their own situation: "I need to update my own documents!"
