“Nothing is certain except death and taxes.” However, “Death is not the end. There remains the litigation over the estate.” For many families, the death of a loved one is the beginning of years of strife, anxiety, anger and bitterness. It begins a spiral of mounting legal expenses, the agony of publicly fought battles, and the permanent loss of relationships. The death of a loved one can be just the beginning of years of heartbreak and turmoil. However, it does not have to be this way. Legacy planning and setting forth one’s end of life decisions are one of the best gifts you can give to your family, no matter your socioeconomic status, ethnicity, age or religion. It is not important just for the wealthy, but for everyone, no matter what material assets they possess or their individual family dynamics.
In law school my trust and estates professor told the class, “Everyone in this room should have a basic estate plan.” At the time, I was twenty-one years old, had no children, and my worldly possessions consisted of an apartment of furniture from Goodwill and a heap of debt. As a result, I found this statement to be preposterous at best. I believed it to be the professor’s way of demonstrating his importance in being tasked with teaching us this subject. This, at the time, was the only credence I gave to such a statement.
However, for the past twelve years, my practice has focused primarily on estate planning, elder law, and trust and estate litigation. Through this experience, I now understand that there has never been a more prophetic statement. I have seen families, those that are wealthy, middle class, and those with little or no material assets, torn apart by the death of a loved one who passed without a basic estate plan. Or sadder still, the elderly or incapacitated abused emotionally and financially by a caregiver, or even one of their own children, the perpetrator enabled by the mere fact that no documents existed setting forth the victim’s true wishes.
The key fact that I did not understand in law school, is that in a majority of these cases, the powder keg that ignites the war is not the amount of money at stake, but rather the personal belongings of the loved one – those small trinkets which hold such sentimental value to a multitude of family members and friends. The costume jewelry, the purse, the tie-clip, or the wedding band – these are the items that often cause the most strife.
The passing of a loved one is the very worst time for a family to try to decide what such loved one “would have wanted.” When people are grieving, they make irrational decisions driven solely by emotion. Often times family members recall various and contradictory instructions they had been told (or claim to have been told) verbally by the decedent. Handwritten notes disappear, or appear without validation, depending upon the position of the relevant party. And if there is a “black sheep” of the family, he or she is most certainly going to appear from the abyss to stake claim to his or her share.
Most tellingly are the numbers of clients who come to me for estate planning after the death of a parent. In every case, these clients will tell me one of two things. The first is how thankful they were that their parent had put together a well thought out estate plan because it made those final days and the days subsequent to their death go smoothly, without bitterness, fighting, or the inability to access funds necessary for their parent’s care and final arrangements. The right persons had been appointed for the right roles, and everyone was able to keep those cherished memories of their loved one without the tarnish of anger and arguments. But more often, clients speak of the animosity and discord which resulted from what had been a close knit family erupting into war over disagreements because there were no documents in place setting forth their parent’s wishes.
The Sandbox Wars is more relevant now than ever as our world grows smaller and often children live hundreds if not thousands of miles away from their parents. Gone are the days when the family came together as a parent aged, each child living just a few houses away, talking every day and cooperating over time to assure their parent was well taken care of in life and in death. The distance between children and parent prevents them from seeing the parent each day, assuring they are cared for, and this often breeds distrust of those close to the parent, as the “absentee” children feel as if these people could easily take advantage by nature of shear proximity.
Stephanie MacDonald Payne has captured the very essence of what I have heard from countless clients. Her book tells the reader, through the eyes of a nurse close to the loved ones, stories to which every reader can relate. It opens the reader’s eyes to the importance of legacy planning and evokes thoughts about the reader’s own personal wishes and family dynamics. Her book puts to paper the importance of this gift that one gives to his or her family by putting together the right documents while one still has the chance. Her unique experience and background allows her to draw the reader into each story, and allows the reader to relate these stories to those of his own. Rather than a clinical, legalistic, and technical lecture on those issues legal scholars and attorneys dwell upon when discussing an estate plan and the legal importance of same, Ms. Payne shows us the emotional and painfully realistic truth about families’ joys and sufferings brought about as a result of legacy planning or the lack thereof. It brings to the forefront what many families often don’t speak of publically or wish to admit exists within their own families.
Legacy planning and end of life decisions are not a subject many wish to think about, much less discuss. However, these decisions inevitably will be made. The question is, by whom, and at what cost to the surviving family members. The Sandbox Wars is a must read for all of us, as death is inevitable. However, as Ms. Payne illustrates, we can control what legacy we leave behind, not just our financial legacy but the emotional legacy we leave our families.
A. Melissia Riddle, Esquire
Riddle Law Group
BBA, Juris Doctorate