executor if —
• he or she is beginning to show signs of mental incapacity, memory loss, or confusion;
• he or she is not the one who looked after the family’s finances and has no familiarity with financial matters;
• he or she is overwhelmed, or likely to be overwhelmed, by emotions at the loss of his or her spouse;
• the parent who died owned a business that the other parent was not involved in;
• the surviving parent was the second (or subsequent) spouse of the parent who died, and the estate is going to involve the first spouse in some way; and
• he or she simply does not want to do it.
During the estate-planning process your parent can ask his or her lawyer for ideas about who should be the executor. There are plenty of possibilities, such as having one of the children act jointly along with the surviving parent or instead of the parent. Another choice is using a trust company, which is particularly suitable if there are likely to be family squabbles or disputes that will require a neutral third party as executor, or where none of the family members live close to the parents.
Whoever is chosen as executor should be aware that he or she has been appointed. If your parents want to appoint you or one of your siblings, they should let you know before they sign their wills. This is something that can be talked about at a family meeting.
A wills discussion will also cover the distribution of the estate, which refers to who will inherit the parents’ assets after they pass away. This is, of course, where most of the disputes arise with estates, and it is an area in which many parents take great care to craft an arrangement that is fair to everyone, in their view.
In some families the distribution can be as simple as dividing whatever money is left equally among the children, but it is not always that easy. One of the most important elements of the distribution of an estate is that of special situations that need more attention than most. These situations might include a family member who is disabled and must have his or her inheritance placed in a trust, a business that is being passed down to the next generation in the family, or a blended family that must balance the needs of a new spouse against those of the children from a previous marriage.
2. Are You the Right Person to Bring up the Troublesome Topics?
An issue that a number of people wrestle with is whether they should be giving their parents any planning advice or asking them about personal documents. Are they sticking their noses into private matters if they decide to speak up? Are they the best person to bring up the subject with the parents? If so, where do suggestion and encouragement end and where do interference and influence begin? If not them, who else is going to bring it up and see that essential documents are done? Nobody wants to be accused by siblings or other family members of trying to force a parent’s hand.
What if there is a family business and nobody has been named as the person who will take over if your parent becomes ill or mentally incapable of running the business? What if your parents own a cottage that is used by all family members and it is not clear who should be able to continue using it after your parents’ death and who should pay for its upkeep? What if you have a sibling who is handicapped and your parents have not made any special financial arrangements for that person? You may see that all of these topics need to be addressed but you may have no way of knowing whether adequate planning has been completed unless you ask your parents.
You may feel some responsibility toward your siblings to make sure that things are in order, not to mention toward your parents whose retirement and golden years may be directly affected by lack of planning. You may also feel that your parents’ legal affairs will affect yours in the future if your parents do not put their affairs in order. If you, a child of the individuals directly involved, do not have the status as someone who is allowed to bring up a constructive discussion with your parents about their estates, then who does? If you do not bring it up, who will?
One of the factors that causes individuals to hesitate to bring up estate planning or incapacity planning is that they find it hard to accept that they now have to look after the person or people who always used to look after them. Sometimes it takes a very long time for this idea to dawn on a person who really does not want to reverse roles and become the caretaker.
We are not used to parenting our parents, but sometimes that is exactly what is required. You should do everything you can to ensure that your discomfort or disorientation with this issue does not prevent you from raising a topic that you think is important. You may be a “child” in the sense that you are the offspring of a certain person and therefore his or her child, but you are an adult.
Your parents might already have seen you change from a single person to a married person, or from a child to a parent of your own children. They have seen you mature from a schoolboy or schoolgirl into a person with a job and responsibilities. They might have seen all of these stages and they realize that the impulse to protect and help them is simply part of that maturation process you have been going through. As an adult, you are expected to recognize when someone close to you begins to struggle with the tasks and challenges of everyday life and to shoulder the responsibility of helping if you can.
Sometimes talking about the role reversal with your siblings, spouse, friends, or even a counselor can help you get used to the idea that you might have to take over your parents’ financial or health decision-making. You will also find information about “parenting your parents” on several websites and in magazines aimed at individuals who are caretakers for their parents.
If you are willing to bring up a difficult subject with a protective attitude and willingness to listen to others, and if you are willing to prepare in advance to ensure a good outcome, then you are the right person to bring up the topic.
2
Why Don’t People Plan, and What Can You Do about That?
No two families or people are exactly alike. Their reasons for neglecting to carry out basic estate planning are never alike either, as they can be logistical, emotional, or a combination of both. However, there are some reasons that North American families and individuals give more often than others when asked about their reluctance to plan. Generally speaking, people are aware that they need to do “something” to deal with end of life and incapacity. Messages about the importance of planning are everywhere. The problem is not lack of awareness; the problem is taking action.
In this chapter, you will read about some of the reasons commonly voiced for failing to plan for the future. Some of these may sound familiar to you through your conversations with your own family members. You may even have used one or two of them yourself. If you have heard them from family members in your efforts to motivate them to get on with their planning, reading this chapter may give you more insight into their thoughts, fears, and feelings. You will find out what you are up against when you begin to plan your family meeting.
This chapter may also give you some ideas about how to counter these reasons if your parents or other relatives use them as an excuse not to plan. If some of the reasons are new to you and you have not heard them mentioned by your family members, you might find it useful to think about whether one (or more) of them is actually the true, underlying reason for their resistance to planning. If a real impediment exists, it must be dealt with so that an estate plan may be put together. However, unless the impediment is identified and revealed to you, it will never be removed.
1. Not Knowing Where to Start
There is no shortage of information available about wills, powers of attorney, and health-care directives and almost every related legal topic. In any given week, you could see a magazine article about retirement planning, a television program about seniors’ issues, a news story about an estate gone terribly wrong, and dozens of blogs on the Internet telling you which documents you should have.