Enduring Values - Thoughts on Estate Planning

People I talk with frequently begin the discussion of “estate planning”, as if it were simply a money transaction (i.e. who gets this thing of value, and who gets that thing of value---and is everyone getting an equal share?).  I have discovered, however, that after we visit a while, they start talking about their real concerns.  This usually opens up a whole new dimension!

Now the question is no longer whether everyone is getting an equal share, but whether everyone is getting a fair; or an appropriate share.  Should the child who is a doctor receive the same as the child who remained on the farm?  What should I leave to the child who is independently wealthy?  What about the child with health problems; or the child who chose to sacrifice financial rewards in service of his fellow man?  There are no right or wrong answers here.  Each client must decide; usually in consultation with their spouse, and often with their children; the answer that is right for them.

Another concern that is often present, is the desire to “keep the farm in the family”---especially if it has already been in the family for several generations.  Other concerns may be preserving a natural habitat; or supporting a church, a school, or some other charitable endeavor.  Again there is no correct answer other than what is right for this person.

In my opinion, the lawyer’s role in this process should be to encourage the client to think through his or her personal values and desires, and help the client to draft an estate plan that accomplishes what the client really wants.  Many people really do want to divide their estate equally among their children, and if that is what they want, the lawyer should do that in a fashion that minimizes State as well as Federal taxes; and also in a fashion that provides protection against ex-spouses and creditors of the children.   We lawyers should not, however, just make assumptions about what a client wants.  Granted, it takes more time to actually talk with a client about what he or she wants, but I think it is much more satisfying and productive.   I reassure my clients that it is their money; they have worked hard to accumulate it, and they should do what they want with it.