The phone rings and I pick it up.
“Hello, my name is John Simmons. You’ve worked with my mother Betty Simmons?”
“Yes, that’s right,” I say.
“Well, we need to change her Will. Now.”
“Who’s ‘we’?” I ask.
“We is me and my sister April. We need to change Mom’s Will. Now. “
“John, I’ve worked with your mother, and if she would like to change her trust, which we did a number of years ago, I’ll need to have her call me. She can come in and we can discuss the changes she’d like to make, and I’d be happy to work with her on that.”
“Oh, well, she can’t really do that.”
“Why not?”
“Well, she can’t drive anymore and it’s hard for her to get around and I’m taking over her house now.”
“Taking over her house? What do you mean by that?”
“Well, I’m living there and my sister’s living in London and Mom wants me to take over the house.”
Oh, boy. Here we go. I get calls like this on a fairly regular basis.
Adult children often do not understand that when their parent or parents have made an estate plan with an attorney, the client the attorney has worked with and has duties toward is the parent or parents, not the adult child now on the phone.
How to explain this? If I insist that I must speak with Betty and that she’s the one that will need to come in to plan and sign any new documents, John will be angry. Why can’t he just “take over the house?”
My usual approach is to allow an adult child to schedule an appointment for an aging parent and to transport the parent to my office.
When they arrive, I need to have John sit outside the office for a while as I speak to Mom and find out what she’s trying to accomplish with an amended estate plan.
In this case, John physically barged his way into my office first, sat down and announced: “Mom wants me to have the house and April to get the cash.”
“Oh, really? How much cash is there, Betty?”
“About $300,000,” she replied.
“And the house in Kensington is worth about $900,000, right?” “Yes,” Betty said, as I oriented my chair and body language exclusively toward her.
“Yeah, so I’ll get the house and April will get the cash,” John chimed in.
I then had to explain to both Betty and John that “taking over the house” and giving the house to John only are two very different things.
John kept insisting that I had to fix his mother’s Will to give him the house. He was not going to take no for an answer.
Until I told him: go sit outside this office or go get a cup of coffee while I talk to your Mom. I felt like a schoolmarm sending him to detention, but so be it.
Alone with me and without the influence of her son in the room, Betty told me candidly that she was having trouble taking care of a large house and remembering to pay all her bills. And yet, when I asked her if she really wanted John to inherit such a large portion of her estate as her house, her largest asset—effectively disinheriting her daughter—she said she hadn’t thought about it that way. She said she loves both children equally and wants them to benefit equally from her estate.
That’s exactly what her existing estate plan, drafted five years ago, does. And, it also allows for her to resign as acting trustee of her own trust, and allow her nominated successor trustee—John, followed by April—to “take over” in terms of managing what’s in the trust, her house and her bank accounts.
It’s essential that estate attorneys remained focused on who is their client. Here John thought he was going to “take over” when, in fact, my duty is to help his mother carry out her estate planning wishes.
I recommended that Betty could sign a resignation as trustee, empowering John to manage her trust and keeping in place the provision that gives Betty’s estate equally to her two children. If John were to eventually decide to keep the house and there wasn’t enough cash in the estate to equalize the gifts between John and April, John would have the option of co-owning the house with April, or rustling up enough cash of his own to buy April out.
I brought John back in the room and explained the difference between “taking over” as trustee versus acing his sister out of hundreds of thousands of dollars’ worth of an inheritance.
Betty liked the solution I proposed. John didn’t. “I don’t have the money to buy my sister out,” he pleaded.
“I’m sorry,” I said, “but my job is to follow the instructions and wishes of my client, Betty, not your wishes. You and April will need to negotiate how you deal with your inheritance when the time comes.”
Estate planning is tricky in that family members who are intended to become the ultimate beneficiaries often believe it is their prerogative to determine provisions in their parents’ estate plan. Not so.
The best approach is for adult children to not count on their inheritances until they hatch and to respect their aging parents enough to remember that the parent, not the adult child, is the one making the estate plan and the one whose interests the attorney needs to protect.
