It’s Best to Settle Some Matters Early

Estate planning involves much more than complicated legal documents; it is an intensely personal process that can be filled with emotion, family quarrels, imagined insults and difficult choices.

Before you decide which particular legal device to use, whether it’s a simple will or the more obscure, generation-skipping trust, you will face many issues you might prefer to ignore, starting off with the fact of your own mortality. After all, what you’re dealing with is what will happen to your property after you die.

There are a host of real and perceived conflicts to resolve: which of your relatives is best suited to be the guardian of your children; how to treat fairly the children of a previous marriage; whether to divide your money evenly between all your kids or leave more to a child who has special needs; and how to explain what you’ve decided.

And there are even more personal questions: Who gets mom’s favorite necklace if several children want it? Will your children be upset if you decide to leave a sizable gift to a charity? Who should be the estate’s executor in charge of fulfilling your instructions? Will one sibling be jealous if he or she is not named?

Personal Concerns

In his new book, “Plan Your Estate” (a national version of an earlier book on California estate planning), attorney Denis Clifford has added a chapter called “Personal Concerns and Estate Planning” to discuss many of these very personal issues.

“Your estate plan won’t succeed unless you take human concerns into account,” he writes. “You do need common sense, some candor and an ability to put legal technicalities aside from time to time.”

One crucial issue is whether to talk to your beneficiaries, and how much you should say about your plans.

“Most of the people I’ve worked with have been aided by talking about their estate plan,” says Clifford, although “there are times when someone doesn’t want to hear or talk, or other times when communication only reveals a deep and unbridgeable gulf.”

On a beneficiary’s side too, there are problems, he concedes, especially when it comes to candor: “A societal code that death is an unmentionable . . . fear that one’s motive can be misunderstood, and you’ll be thought pushy or greedy; the sense that honor lies in not caring about a parent’s property.” Nevertheless, if you can get past these barriers, some discussion is often preferable.

Discussion Topics

Some subjects are obvious topics for discussion. If you are recommending that a sister be the guardian of your children, you should check with her to make sure that she is comfortable with your decision. After you decide who should be the executor of your estate, discuss the appointment with that person so that he or she knows what will be involved and how you would like things done.

Other topics, even more personal, may depend upon such human dynamics as the relationship between a parent and a child. For example, if you decide to divide your estate between your children in unequal shares, you may want to personally explain the reasons to avoid potential conflicts or even a lawsuit challenging your plan.

In his book, Clifford recites several examples (from his own practice) when a family discussion helped resolve an estate-planning dilemma. In one case, the parents of four children decided to leave their summer home to one son, but they couldn’t decide whether to reduce his share of the rest of the estate by the full value of the home. The parents discussed the issue with all the kids and worked out a compromise solution that everyone thought was fair.

In another case, all three children were emotionally attached to certain family treasures. The father didn’t want to worry about causing a fight among the children after his death, so he asked them to agree on a distribution in advance, which he included in his will. (Clifford’s book is published by Nolo Press, 950 Parker St., Berkeley, Calif. 94710, telephone (415) 549-1976.)

On the other hand, there are some things better left unsaid. You’ll have to decide what’s right for you.

Klein cannot answer mail personally but will respond in this column to questions of general interest about the law. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.