In the first 10 minutes of Netflix's The Gentleman, the grieving heirs of Archibald Horniman are shocked when it is revealed that he has left his sizeable estate almost entirely to his second-born son, to the exclusion of his other children. In HBO's Succession, the entire series builds toward a surprise reveal of who will inherit and control Logan Roy's estate and media empire. Alongside surprised and unhappy heirs and beneficiaries, lawyers and the threat of litigation feature prominently in these narratives.
It is easy to see how the element of surprise in a generational wealth transfer can make for good TV. But these and other similar stories prompt the question: Would transparency with heirs and beneficiaries prevent or reduce family conflict and the likelihood of litigation? Or might it create the very same conflict that it seeks to avoid? This article discusses some of the advantages and strategic considerations of sharing estate planning details with the next generation while recognizing that transparency is not a fix-all solution and may, in some cases, cause or exacerbate existing disagreements.
Before examining varying approaches to transparency, three ethical and legal principles should guide the discussion.
- First, communicating any part of a person's estate plan is entirely up to that person. No person should feel compelled to share any details about their wealth or estate plans with anyone. They may choose to keep this information entirely confidential until death or other events require some limited disclosure to impacted individuals. Their attorneys are ethically bound to maintain client confidence during and, to a large degree, after representation.
- Second, early communications about a person's estate plan do not necessarily make the estate plan itself any more or less valid. Put differently, sharing a defective estate plan while a person is still alive does not fix any problems with the plan (although it may offer an opportunity to fix any issues while the testator is alive and competent).
- Third, any person can modify their estate plan at any time prior to death, so long as the person understands the changes, knows the nature and extent of their assets, and understands who their heirs and beneficiaries are. This is the case even if they have already communicated plans that differ from their final plan.
If a person decides to share some information about an estate plan, this communication can take various forms and levels of specificity, depending on family dynamics. At a basic level, a person could communicate that a plan exists and that it has been thoughtfully considered, ideally based upon the advice of counsel and other wealth and tax advisors. Even knowing from the testator that a plan exists can help avoid future conflict, including allegations that a person did not knowingly create a plan. A person could, additionally, communicate the general framework of their estate plan, such as how the estate will be divided and who will take on various roles, such as medical and financial power of attorney, successor trustee, and personal representative. When sharing these details, it can be helpful for a person to explain the why behind these decisions. Even if a family member disagrees, communicating the rationale behind estate planning decisions can preempt future claims such as "Mom wouldn't have wanted it this way" or "Dad would never have treated the siblings differently."
This approach can be effective, but it also can invite risk. Contradictory explanations, or even explanations that are unclear enough to be open to misinterpretation, can reinforce mistaken beliefs and enable a factual basis for an otherwise more generalized grievance. And sometimes even when communication is clear, the heirs may simply only hear what they want to hear. Thus, any communication about estate planning should be done thoughtfully, strategically, and with attention to detail—not just revealed on a whim after Thanksgiving dinner.
A person who wishes to communicate their estate plan to their family may do so directly, either by meeting with or writing to their family and interested parties. They may also rely on an attorney—the person who advised the plan or other counsel—to convey certain details to family members at the person's direction. In some instances, the person could involve an attorney or other professional to facilitate a family meeting either to proactively communicate part of the estate plan or dispel concerns or misconceptions. Communication in any form it is delivered can address or preempt specific points of conflict, so long as it is appropriately tailored to the levels of trust and the dynamics among family members. And if a person decides to share information about their estate plan with family members and then later decides to change their estate plan, it may be prudent to share the updated plan with their family to avoid surprise.
Transparency alone will not preempt every estate and wealth dispute. And in some cases, communicating a person's plans may stir up conflict that the person would rather not live to see. It may also provide an opening for unhappy family members to lobby or improperly influence the testator or other family members. Whether transparency will help resolve conflict in the long term is best gauged by the person making the plan who understands their family's unique dynamics.
Strategies to avoid wealth and estate litigation are especially important considering the ongoing challenges inherent in generational wealth transfer. More wealth than ever before is expected to be transferred from aging generations to families who are increasingly fractured and blended due to divorce and remarriage rates. These conditions make it even more important to take practical steps to reduce future conflict and ensure that transfers of wealth occur according to the wishes of those making decisions during their lifetime. Whether you seek strategies to avoid future conflict or resolve a wealth dispute, or if you just have questions about how to do so, please contact a member of our Wealth Planning and Disputes Group.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.