What About My “Stuff” by Clifford S. Brown
Americans like “stuff,” be it trash or treasure, and we surround ourselves and fill our homes and lives with it. Many of these items are “family heirlooms” which carry a bit of family history and for which we have strong emotional ties. In a way, “our stuff” defines who we are, and it is important to us.
Recently, a nationwide survey was conducted among estate planning attorneys and their clients. Each participant was asked to list, in order, the ten most important matters to be discussed and resolved in developing an estate plan for a client. Most of the attorneys, over 75%, listed tax planning as the most important. An almost identical percentage of clients, however, listed the number one priority as “who gets what, and when,” and relegated tax matters to number seven on the top ten.
This survey clearly reveals two important points. First, clients are deeply concerned with the transfer of their property, and particularly their “stuff.” Second, in the words of Cool Hand Luke, “what we have here is a failure to communicate.”
Clearly, estate planning attorneys, or at least 75% of them, need to listen better. The most important aspect of estate planning is insuring the client’s desires are carried forward in the most efficient and effective manner. To achieve that result, the attorney must have knowledge of what the client has and what he or she wants done with it, particularly the important “stuff,” and only the client can provide this information.
Just as clearly, and of greater importance, the client must develop a clear idea of how the client wants his or her “stuff” to be transferred, to whom and when. This requires an honest, perhaps even brutal, assessment of the family members and dynamics, and sharing of this information with the attorney. Failure to provide full information, however embarrassing, to the attorney almost guarantees that the family dissension the client wanted to avoid will occur.
The problem with “our stuff” is that many of the items are one of a kind and cannot be divided. The grandfather clock that has been in the family for generations cannot be divided among three children. Likewise, the china
service “brought over on the Mayflower” may be divisible, but that destroys its integrity. So, decisions must be made, and then there are several options for transfer of the “stuff.”
Before considering the options available to secure transfer of the “stuff,” the client needs to analyze the “stuff” carefully. There will be items that are unique and cannot be divided; these must be dealt with individually. There
will be items that are easily divisible. And, there will be items that, frankly, the kids do not want, which can be sold.
Then the client needs to determine if he or she wants to achieve equality by value among the recipients. For example, if everything is to be divided among three children and one child is to receive a very valuable item or portion, will there be enough “stuff” remaining to provide equal value to the other two children? How is value to be determined, and by whom?
Next, consider those highly unlikely, but they do happen, events. What is to be done if a child, for instance, does
not survive? Does that child’s portion go to his or her children, or to others? Are there minors involved, making a
transfer of title difficult? Or, unsuitable?
Further, consider problems, current or potential, the family members might have. For example, is a child experiencing financial problems, which could lead to creditors or bankruptcy and loss of some of the “stuff”? If so, should provisions be made to defer transfer to the child? On what terms and under whose control?
When the client has considered all of the variables, then the information can be conveyed to the attorney, options discussed and a suitable estate plan developed. As noted above, it is the attorney’s duty to carry forward the
client’s plan. But, it is the client’s plan, which the client must develop.
“Our stuff” is enjoyable and a great part of our life. Each of us wants this passed on to family or chosen individuals. Each of us, and our family, is unique, however, and our desires for transfer of our “stuff” is equally unique. This uniqueness, and the plan to preserve it, must be carefully thought out and fully explained to the attorney. And, if the attorney is not listening, try the 25% who will. Gladly.