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The Element Of Surprise: How To Avoid Drama Upon A Family Member’s Death

By Joe Busnengo, Attorney At Law



How do families go from being close-knit to not speaking to each other ever again? It can happen more often than you think after a family member passes away – but at the same time, it may be just as preventable if the right steps are taken while that family member is still alive.

Take the event of a loan, for example. Few things are more sensitive than lending money to another family member. Let’s say a mother has loaned her son a great deal of money over the years. Just before she passes, she says, "I've loaned my son a whole lot of money over my lifetime, so deduct what I've loaned him from what I would otherwise give him." Just imagine how much family strife that can cause, especially if all the other beneficiaries receive funds and her son gets nothing.

Is there anything the deceased could’ve done? Possibly. She could've decided she was just going to be especially generous and still give her son his share. Of course, that might have angered many other family members, because that would mean her son would’ve gotten even more than them. 

 

Be Clear About Your Wishes – Early And Often

On the other hand, what if the deceased had told everyone in the family her wishes early on? She could’ve told her son, “I'm loaning you this money, but you need to know, if you don't pay it back it's going to be taken out of your share in the will.”

After all, the real problem in situations like these is almost always the element of surprise. If people don’t know what’s coming, especially when they’re grieving, their reactions can be highly emotional. When it's an unpleasant surprise, they're going to argue and often times their first thought could be, "I'm going to sue."

Therefore, when you’re making an estate plan, tell the people who are in it if there's anything in the documentation that they wouldn't expect.

For example, if you’re a married couple and you leave everything to your children equally in your will, there may not be a real need to tell them all about it since that's what they’re going to expect, right?

Yet, let’s use our earlier example where a mother says, "I loaned my son a whole lot of money, so perhaps I'm not going to give him as much when I pass away." If she had told her son this beforehand, it probably wouldn’t have been a very comfortable conversation. The son wouldn’t be happy. However, by getting the conversation out in the open so all parties knew about it beforehand, this much we can say with certainty: There’d be no surprises later on when the mother passed away. Her wishes would be known well in advance, which might keep her family’s reactions in check.

 

Inheritance Isn’t Always Created Equal

A couple has a child with a gambling problem. What implications does that have for a trust? The parents know all too well that if their child all of the sudden gets $500,000 in an inheritance, it's going to be lost at the roulette wheel within 30 days.

That’s where the parents might say, "We've got two kids. Our youngest has a gambling problem. Our oldest doesn't. We’re just going to give our oldest the inheritance straight out. For the youngest, we’re going to put that amount in a trust. Then we’ll put the trustee in charge of how much he gets and when he gets it."

In this instance, you have two children receiving an inheritance but there are plenty of strings attached. Depending on the personalities involved, that may provoke that same kind of angry reaction in the children much like our other example. Again, to minimize this type of outcome, it’s probably best to have clear communication among the family as soon as possible so everyone knows what to expect.

If you’ve loaned money to a family member and it’s going to potentially impact their inheritance later on, having an honest discussion during your lifetime with that individual is a very good thing to have. The conversation may be uncomfortable and that family member may not be happy about it, but there’s a better chance that they’ll be accepting of the situation because they won’t be finding out about your wishes in the “heat of the moment” after you’ve passed.

In the event a family member doesn’t react well to that conversation at all and it causes strife, at that point you need to make plans because you can assume that they will challenge your will when you pass away. Talk to other beneficiaries and your estate planning attorney. Discuss what can be done if that family member indeed does sue in order to prepare for litigation.

 

At Miles & Gurney, LLC, our estate planning attorneys have dealt with a number of wills and trusts that need to be structured in a unique way based on loans given to certain family members. Don’t let these complexities keep you from having an important conversation with us about your wishes today – and then communicating those wishes to your family as well. To arrange an initial consultation with us, call 312.929.0974.




Joe Busnengo practices in the areas of probate, family law, and estate planning. While a student at Northwestern University School of Law, he gained experience with family law as an extern at Chicago Volunteer Legal Services and with probate and estate planning as a clerk at Prather Ebner LLP. Since graduating and being admitted to the bar in 2013, he has represented clients in adoption, divorce, and estate planning matters through Chicago Volunteer Legal Services and Wills for Heroes. He is currently a member of the Chicago and Illinois State Bar Associations and serves as co-chair of the CBA YLS Public Outreach—Wills for Heroes subcommittee.