Cue awkward silence.
Like it or not, the holiday season may have been the first time you learned that your parents plan to leave you the family china, or that perhaps you won’t be getting the vintage Chevrolet you grew up pretending to drive in Granddad’s garage.
These conversations are tough to initiate, and can be extremely difficult to navigate without causing hurt feelings or raising concerns about your loved one’s health. But I applaud the families having these hard conversations while they are able — such conversations give Grandma, Aunt Betty, or Dad the opportunity to explain why they want things done a certain way, and that insight can be invaluable to their loved ones when it’s time to put those wishes into effect.
But is a discussion over Christmas dinner enough to ensure that Grandma’s wishes are fulfilled? Do I get “dibs” on the handmade trunk in my dad’s old room based on the conversation above?
She said she wanted me to have it, my sister and other family members heard it, so it must be a done deal, right? Actually, not quite.
The law cares very little about what someone said they wanted — and it doesn’t matter how frequently it was said, or how many people heard the conversation. The common confusion regarding the impact of these “who gets what” discussions means I have had to tell countless children, grandchildren, and loved ones that “I’m sorry, but it doesn’t matter what your Mom/Grandma told you she wanted. We can only work from what her will says.”
And if Nana didn’t have a will? Well, then state law makes the determination of who gets what, and there’s very little wiggle room.
I know what you’re thinking — “I’ve told everyone what I wanted. My family gets along great. They’ll just work it out between themselves, even if the rules say otherwise.”
The fact is, siblings disagree. Blended families don’t always mesh. I’m sure our local probate judges could tell you that many a contested probate situation started with someone trusting that everyone will “just get along.”
So, you’ve made your decisions during holiday gatherings, but those decisions are not effective quite yet. What’s the next step? You can make those decisions legally binding by incorporating them into your last will and testament, with help from a local estate planning attorney.
Or if specifying who will get each family heirloom becomes too complicated and time-consuming for you and your attorney, there’s also a middle ground. I use a clause that directs the representative named in the will to divide the possessions among the family according to a list prepared by my client and kept with his or her will. While not legally binding, it allows your representative to point to a specific clause in your will directing him or her to divide things per your wishes (which can carry a lot of weight with family members.)
While you’re putting pen to paper dividing your worldly possessions, why not take steps to protect family harmony during your lifetime, ensuring many more Christmases spent happily together? After all, it’s not all about who will get the family silver. Tension commonly arises among families when they are forced to make and implement decisions for Granddad or Mom while he or she is still living.
That’s where the Financial Power of Attorney and the Advance Directive (formerly called the Durable Power of Attorney for Health Care) fit into the estate planning arsenal.
By making the hard decisions for your family beforehand, you allow them to confidently make decisions in your place if it becomes necessary. By considering the (admittedly uncomfortable) “what ifs,” you spare your family the uncertainty of making the hard calls without your guidance and you save them the inevitable arguments regarding what course of action is the best for you.
Of course, the most important thing to do during holiday gatherings is to cherish the time you get to spend with your loved ones.
But if the discussions turned to who will eventually inherit that family gravy boat, don’t forget to write those decisions down in your will (or encourage Grandma to do so). And it wouldn’t hurt to also pass along the famous turkey gravy recipe, too.
Mandy Moyer practices law with Dyer & Rusbridge, P.C. in Canton. She focuses on estate planning and probate law, and enjoys helping families plan for life events, whether expected or unexpected. She is a native of Cherokee County, and a graduate of Kennesaw State University and the University of Georgia School of Law.