Alan L. Nobler

Author and Conflict Resolution Consultant

When Good Plans Go Bad

What you can do now to minimize conflict among your heirs later.

By Alan L. Nobler

Many people spend a lot of time and money on the creation of estate plans. But for a variety of reasons, their families wind up in conflict after the passing. 

I liken the planning process to SCUBA diving. One of the first things you learn is to “plan your dive and dive your plan.” This means you have to do all your meaningful discussion about what is going to happen on the dive before you get into the water because once you go below the surface, conversation is going to be extremely limited.

A word of disclaimer: I do not do estate planning. My connection to this topic comes from my interest and experience in resolving intra-family disputes after an event. I have been working with families since 1969, primarily in the divorce field. In 1999, when litigation as a dispute resolution model no longer worked for me, I concentrated on Mediation and Collaboration as the best way to achieve long term resolution of intra-family disputes over estates. I have managed to settle these cases completely out of court and sometimes as a Temporary Judge when litigation has begun. In November 2009 I did a program on this topic with some other top professionals for a large group of lay people. We have since done programs for many more groups, including lay people and professionals – attorneys, family counselors, financial planners, and real estate professionals.

After that experience I am convinced these are the top reasons families wind up in conflict after the loss of a loved one:

  1. There was no plan to begin with and the parties could not cooperate after a death.
  2. The plan was not shared with the family in a way that created understanding.
  3. The plan was not implemented.

So, what can you do now to minimize conflict among your heirs later? 

  1. Understand why you haven’t done a plan. Is it:
    • You are not sure if you are going to remain married to your spouse?
    • You cannot agree on a guardian for minor children?
    • You disagree with your spouse about how to distribute your estate? For instance, you may
    • have children with different abilities, needs, or economic circumstances. 
    • You don’t know a professional you trust to help you with your plan?
    • You believe plans are just for “old people” so you can worry about it later?
  1. The answer in each case is some form of excuse, likely growing out of some kind of conflict. You know we will all die and we have limited ability to determine how, why, when and where. So, let’s get started on some answers:
  2. The marriage: if you are uncertain, all the more reason to make a plan. You have the ability to dispose of your half of the community property; it doesn’t all have to go to your spouse. You can dispose of all of your separate property without any of it going to your spouse. Your spouse does not have to give consent for you to make those dispositions.
  3. The guardian: It is possible to have conflicting guardianships established, depending on who dies first. But the real problem is the communication with your spouse. This is why our Collaborative Process includes family counselors. Sometimes, a child specialist may even help determine the best placement for your children.  Remember, this may only be for a limited time and you can revise your will in a year or two. An amendment (codicil) modifying the guardian is usually very inexpensive.
  4. Disagreement about distribution:  This is where we return to the counselor, and even the financial professionals who are trained in the Collaborative Process.  Assessing needs, budgets, and abilities may be necessary to have a real conversation about why there is a conflict. Giving more benefit to one child over another is likely to result in some kind of protest unless everybody understands your thinking.  Parents sometimes “give up on” one of their children due to drugs, alcohol, gambling, or some other form of addiction or disability. The planning process, with a team, may be the ideal opportunity to explore ways to complete a plan that will bring the family closer together. Your professionals can explore special needs and incentive trusts if the circumstances warrant.
  5. Finding a professional: Many organizations exist to help you find the right person to help with your situation.  www.NoCourt.org, a non-profit organization, has a list of professionals trained to work together to help families solve problems – not creating a battleground that will burn your family’s finances and relationships.