An Interview with Les Kotzer
Interviewed by Mara Peluso
Are you ever surprised by the
emotions that are stirred up by the subject of estate planning?
Throughout my years of practice
as a wills and estates lawyer, I have been shocked to observe
how often the word "hate" comes up when families
are dealing with their inheritances, as in, "I hate
my brother," or "I hate my dad." My clients
are expressing "hatred" toward the parents who
raised them and toward their own brothers and sisters. These
are the people we grew up with, the kids who played football
with us in the backyard and rode to the Grand Canyon with
us in the back of the station wagon. Now these "children"
are 45 and hating each other to the point where they won't
even be in the same room together.
Why is this happening?
: Because parents and kids
are turning a blind eye to planning. Often the parents themselves
are destroying their own families without even knowing it,
by not planning now. The book I co-authored with Barry Fish,
The Family Fight: Planning to Avoid It
, is not about
how to save taxes—it's about how to save families.
We need to pay attention to this issue, because we have
the potential to avoid the "family fight."
You say it is a growing trend
that more and more people are fighting over inheritances.
Why is that?
: In my practice, I have seen
a trend among baby boomers, who are about to have trillions
coming down to them from Depression-era parents. Baby boomers,
in general, were brought up to expect the best of everything.
The baby boomer generation spends quite a bit—and
they lost quite a bit when the market "crashed."
Until the stock market slowed down, baby boomers thought
they would retire early on their investments, which had
been increasing every day. Now, lots of people are afraid
to open their retirement savings statements because their
holdings have dwindled. The baby boomer generation (which
is my generation) also has a lot of debt. Many of us are
even being laid off, and it's very hard to find work
at age 55.
Our parents, on the other hand, protected
their money. They didn't go to restaurants as often
as we do, they kept their cars longer, they clipped coupons
and saved every penny. Therefore, baby boomers are telling
me, "I may not have lots of money now, but I will
in the future because Mom and Dad have this and that."
Many baby boomers are depending on their parents'
homes as a mattress of protection. Because many children
feel entitled to their parents' estate, they fight
when their parents don't handle their estate as the
children believe they should.
And what happens then?
: Because of these generational
dynamics, the concept of "waiters" is becoming
an increasingly common phenomenon in our practice. Once
I had a client arrive in a beautiful sports car, wearing
a suit that glowed in the daylight, with jewelry dripping
off his arm. I said to him, "Let's talk about
what you own." He said, "Well, my car is leased,
I have a mortgage on my house"¦" His wife jumped
in and said, "My husband is a waiter." I was
taken aback, wondering what kind of restaurant he was working
in to afford him this type of lifestyle. Then it hit me:
His wife meant that he was "waiting" for his
inheritance. I smiled, but the phrase hit a nerve.
Since this incident, I have talked with
many other people who are in the same situation. Rather
than investing or saving money, some of my clients are entirely
dependent on inheriting their parents' money. I even
spoke with a man who calls his brother a "wisher."
His brother was not only waiting for his parents to pass
on, but was wishing that his parents would pass away sooner.
You said that parents are "destroying
their own families without even knowing it." What
are the main mistakes parents make in their estate planning
that contribute to the family fight? How can parents avoid
: The most common mistakes
parents make include:
Failure to plan for the
event of your incapacity
Lots of parents don't understand that their will does
nothing while they are alive. With parents living longer,
fighting often occurs when a parent becomes incapacitated.
If you were to become incapacitated, who would take care
of you? Who would do your banking or make your investments
if you had a stroke or were in a car accident? The executor
of your will has no power to act for you while you are sick,
so your assets could be frozen.
Parents can avoid this problem by appointing
someone as durable power of attorney for property. This
enables someone you trust to step in and make financial
decisions in case you can't make them yourself. In
many states, you can also write a living will and appoint
someone with the durable power of attorney for health care.
Failure to include provisions
for your possessions in the estate plan
Parents assume that children will not fight if their money
is divided up evenly, but children do not fight over just
money. Kids fight over memories. Even if you leave more
to the child who needs it the most, your other child or
children might be really hurt. I have witnessed awful fights
over Mom's personal possessions. In one case, a daughter
wanted to keep a vase that she had given to her mother as
a birthday present. Her brother, who was executor of the
will, was demanding that she return the vase to the estate.
I had to tell her that she was obligated to return it. Rather
than share the vase with her siblings, however, the daughter
smashed the vase in the parking lot of my office.
You need a plan for how to deal with your
The Family Fight: Planning to Avoid It
discusses in detail how to deal with personal possessions.
Failure to inform your children
whom you have named as power of attorney and/or executor,
and why Children fight over being slighted. They
fight over who was appointed as executor or as power of
attorney. In the book, we talk about one woman who learned
that she was the power of attorney, but was already feeling
overwhelmed by her own responsibilities, so she asked her
sister to help her handle the estate. The sister refused,
saying, "Mom wants you to do it. She must have loved
Have a conversation with your children
to explain your choice of executor.
I always had the idea that I could afford to be a
flake. I could afford to get thrown out of Harvard
and be wild because one of these days I was going
to inherit a lot of money. Then one day when I was
in India, my spiritual teacher called me in and said,
"Your father has a lot of money"¦You are
not to accept an inheritance." I was startled.
I said, "Okay," while thinking to myself,
"I'll deal with that when the time comes."
Loving My Dad, Not My Inheritance
At the time, I didn't know
whether I would honor what my guru said or not. I
thought that coming from a family of lawyers I'd
figure a way around it. Yet, on a spiritual level
the mandate felt right to me. I knew that my father
saw everybody as wanting his money and I didn't
want to be one of those people. It would mean that
he wouldn't trust my love. Ultimately, I set
up a special account for any future inheritance with
the intention that every penny would be given away.
Once I shifted my intention towards
my inheritance, the effect was profound. My lifestyle
was no longer impeded by my father continuing to live.
I hadn't been aware that I was wanting his money
and waiting for him to die. Now that I stopped doing
so, suddenly I was helping him remarry. He and his
wife and I became close buddies. I just wanted him
to be happy; he had worked hard, I wanted him to enjoy
spending his money. While I never spoke to him about
my intention, once I stopped wanting his money, I
was freed up to love him—and he recognized that.
Excerpted and adapted from
an interview in
We Gave Away a Fortune
Slepian and Christopher Mogil, with Peter Woodrow
(New Society Publishers, 1992). Available at
Failure to appropriately thank
the care-giving child
Some children wait in the hospital day after day, or even
give up their job or education to take care of their parents.
Their siblings, however, may live far away and never even
see the sick parent. One woman I know of was a caregiver who
felt slighted. After years of living in her sick mother's
house to take care of her, the woman's brother was named
executor of the estate. When the mother died, he threw his
sister out of their mother's house. How does a parent
deal with that? Does a parent give equally even though one
child gave up part of his or her life to help out the parent?
One suggestion is that parents discuss
this issue and decide how to benefit the care-giving child
while the parent is still alive.
Failure to disclose information
about your will to your children
Parents and children both contribute to the problem of secrecy.
Parents are often secretive about their wills, and often,
adult children cannot convince their parents to disclose
any information about their wills. Sometimes a child doesn't
know he or she is appointed as executor until after the
parent dies. On the other hand, many children do not want
to think about their parents becoming sick or dying and
so they refuse to talk about it.
Communication is essential because death
is inevitable. Careful estate planning designed to avoid
family fighting, along with conversations with your children
about your will, can do a lot to prevent these problems.
One way to get the conversation started is to use our book
as a bridge of communication. Parents often ask us to send
the book to their kids and vice versa.
Failure to re-examine your
will after getting remarried
Parents often fail to consider the issue of second marriages.
I spoke with a man whose father had a great deal of wealth
and property, which he had inherited from his own father.
The man's father remarried, and the man was very close
with his stepfamily. The stepmother, who was executor and
sole beneficiary of the father's will, promised that
she would "take care of the son." When she passed
away, however, she willed everything to her own children—including
all of the money and possessions that her husband had worked
for his entire life, as well as everything he had inherited
from his own family. The son said he was not as upset by
the loss of the money as he was by being forbidden to even
see his family's old photographs or to visit his father's
If your parent is in a second marriage,
he or she must talk to a lawyer about his or her will.
Is there anything else you would
say to parents to help keep their children from fighting?
: A lot of people think they
are protected from family fights because they have a will
and a safety deposit box. But many may be in for a rude
awakening, because their children can still have devastating
disputes. Parents must use caution not to base their planning
on inappropriate (albeit natural) assumptions, which often
lead to family fights.
To avoid family fights
over your estate, be careful what you assume!
Never assume goodwill
among your children
Never assume that because you love your kids, they'll
love each other. If you have one child with debt and
another without debt, don't assume one will
look after the other. The pressures put on your daughter
to take care of your son with debt, for example, could
hurt their relationship, or could hurt your daughter's
Never assume that
your child's marriage will be permanent.
In some cases, it may be prudent not to appoint
your son and his wife as executors of your will.
If you appoint your son and daughter-in-law as executors
and then your son should die, your daughter-in-law
would still be your executor. It's generally
wiser to appoint your son and another of his siblings
Never assume that
a "homemade will" will be effective
Because of online will-making programs, there has
been an explosion of the homemade will. Regardless
of how much money you have, it is worth going to
a lawyer and having documents prepared for you.
I have heard too many horror stories. People think
it's easy to do a will on their computers,
but a lot of variations and issues come up in preparing
a will. For example, if you own something in joint
names with "right of survivorship" with
one of your children, like a bank account, your
will can't divide the account among all of
your children. "Joint survivorship"
means that your child who is named as "joint"
on the bank account with you gets that bank account
and has the right to decide what to do with the
money. The same thing goes with land held jointly
with right of survivorship. The point is that the
surviving joint account holder gets the money (or
the land) no matter what the will says.
Never assume that
your lawyer is capable of finding all of your assets
A lot of people come to me, dump documents on my
desk, and think I can find every asset. Sometimes
parents have not organized their affairs and assets
get misplaced or are never found. Get a detailed
checklist (our book has one and there are others)
so you can identify all of your assets. Then tell
the children where to find the list.
Les Kotzer is a wills and estates attorney whose area of
expertise is on families fighting over inheritances. He is
the co-author of
The Family Fight: Planning to Avoid It
(Continental Atlantic Publications, Inc., 2002). Kotzer has
been featured in
, the Associated Press,
United Press International, and on radio and television shows
across North America.
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