Friday, December 28, 2012

Keeping Your Affairs a "Secret" From Your Children is Likely a Big Mistake

Some people freely share their financial information with their adult children, and often will invite them to participate in meetings with their estate planning attorneys and financial advisers. When the inevitable occurs and the parents become incapacitated or die, the children are able to step in and handle the parents' financial affairs. They will have at least a reasonable idea as to the nature and location of the parents' assets, and will typically be designated as the parents' attorneys-in-fact under a Power of Attorney, and successor Trustees under the parents' revocable and irrevocable trusts, as applicable. The designated children will then be able to step into the parents' shoes and handle their personal affairs with the least disruption and confusion possible.

Other parents, however, prefer to maintain a cloak of secrecy regarding their personal and financial affairs. Just yesterday I was contacted by a woman whose mother recently died.  Despite being in poor health, the mother repeatedly told her children that her affairs were in order, and that her attorney (who she did not name) had all of her papers. With the mother's passing, her children have been left with chaos. A thorough search of their mother's home turned up disorganized bank account records, and no copy of a Will. Her daughter found some keys that may be to a safe-deposit box, but the bank where the mother had her checking account will not divulge any information to the children without a court order.

Even worse, perhaps, is the children's discovery that their mother -- who of course had her "affairs in order" -- owned real estate and was on title to bank accounts with another relative, with title being held as joint tenants with rights of survivorship. Since the other relative is living, that relative now takes complete ownership of all the jointly-owned assets, including the real estate.

The decedent's children are certainly frustrated by the state of affairs left behind by their mother.  As her daughter said to me, "I'd like to be able to grieve for my mother -- but right now I'm just angry at the mess she left behind."

The fact is that the cost to untangle the mother's affairs after her death will likely far exceed the cost she would have incurred to truly put her affairs in order. Just as critical, an estate planning attorney would have identified the problem inherent with the mother's joint ownership of property, and could have helped the woman take affirmative steps to re-title the assets to ensure that her children received their mother's share of the jointly-owned assets.

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