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A State of Affairs

Like a lot of the boomer generation, my husband and I have, as we reached and passed 50, been faced with the loss of parents. We were not prepared for these losses, and were shocked at how thick and fast the lessons came towards us at those times. One of the most painful lessons was: what it means to leave your affairs in order.

My husband is truly a baby boomer. Born in 1959, he was the last child of a man who served during WWII. I am a little different; I was born in 1957, the first child of very young parents who themselves were only children during the war. But we found that our parents, so disparate in age, shared similar approaches to family, parenting, and aging.

Our first loss was my husband's mother. Sadly, she fell victim to Alzheimer's disease at a very young age; looking back the early effects began in her late 50's. Mom was caught entirely unprepared, and before she could really put a finger on what was wrong with her, and in spite of remaining with us physically, she was gone. Her entire estate was rolled into her husband's when he was forced to take over her affairs while ill. When she died, her affairs had long been settled.

This seemed entirely logical at the time. Unfortunately, Dad had met and become quite serious about a new lady and, afraid of living alone and not being able to manage as he aged, he married her shortly after Mom passed away. We were young and did not think about the consequences of the fact that this new woman suddenly became chatelaine of what had been our mother's home and possessions. Jealous and possessive, she claimed all mom's things as her domain, and refused to pass small treasures like mom's pretty teacups, silver and china on to the children who under normal circumstances would have inherited them. They had no real value past the sentimental, but sadly this imbued them with value in the ensuing battle our new stepmother waged to gain primacy over our father (who was terrified she'd leave him in a nursing home). We quickly learned to hide our attachment to mom and her things...because if that attachment came to light, the thing would be mysteriously broken, or disappear. Photographs, clothes, china, all vanished. It was very painful.

As time went by, Dad began to fail as well. Unfortunately, his new wife pushed hard to gain control of his wealth, and so he felt beset on all sides and became increasingly secretive about his affairs. The unfortunate consequence was that he refused to discuss money or estate planning, even when he began to be quite ill. He also refused to access his bank account for any reason. His home fell into disrepair, his clothes were old and worn, the fridge empty and the house cold. It was very sad. When he died, his affairs were in a terrible mess. He had many, many investment, savings and chequing accounts. He had left, perhaps forgotten, a large amount of cash in the safety deposit box of one of his children, leaving them in what could have been a very difficult position. Although he told us often how well organized he was leaving his affairs, they were a nightmare. With no way to know the total value or location of estate assets, it took months of forensic accounting before we could even begin winding down Dad's affairs. Meanwhile, his new wife's children moved themselves into the family home. The day after the funeral, they drove a truck up to the back door, emptied the entire house into a moving van, and drove it away. Every drawer, cubboard and wall partition had been searched for valuables. We never saw any of the contents again. They then urged their mother to challenge the will.

That nightmarish year of probate nearly killed the child he had named as executor. Dad had actually named two of his children as executors; double signatures were, by virtue of the co-executorship, required on everything. These children did not live within easy reach of one another, a logistical nightmare.

We learned so much.

It doesn't make for very nice reading, but the simple truth is that in spite of your best intentions, if you leave your affairs in a vulnerable state, things may not go according to your wishes. I know my father in law would have done anything to spare us the experiences that were a direct outcome of his trusting but naive planning. Older and wiser, I will be able to spare my own children that heartache . 

For those of you who wish to begin that planning, consider the following:

1. Are your affairs in order? Really in order? Does your lawyer agree? Guided by the advice of your lawyer and accountant, have things tidied such that if you were taken untimely and by surprise, your executor need simply open a file with a succinct, accurate report of your entire estate. In that file list all assets, bank accounts, investment accounts, and tuck in all attendant legal documents, a copy of your final will, and a copy of your most recent tax return.

2. Make arrangements for and pre-pay or insure your funeral, including service details and interment. Your loved ones will do this for you, but it is a big burden when they are grieving. I remember bursting into tears when the lovely woman who coordinates services at our church asked me what sandwiches I wanted served after Dad's service. I just did not want to be in that place, having that discussion, deciding between egg salad and ham. I had just lost my Dad.

3. Leave an itemized, preferably witnessed or notarized list of the contents of your home, and of valuables you may have stored elsewhere. When we appealed to the police for recovery of the stolen contents of Dad's home, they said without a list their hands were tied. There was no way to prove ownership, it was one person's word against another's. They advise families to change the locks immediately upon the demise of the home owner, and itemize the house contents (there are services, often at your banker's, who do this), with the executor holding the only set of keys. The executor is legally bound to protect the interests of the heirs.

4. Let your heirs know the contents of your will and the value of the estate. We endured multiple daily calls from our stepmother and her children, pestering us to find the latest copy of the will and to disclose its contents. We were unable to get our step-sibs to move out of Dad's house until the will was found and verified (it left the family home in trust to his children, and not his new wife). They then remained for 6 very long and heartbreaking weeks.

5. Make sure your heirs understand exactly what you will leave them and that it will not be available until probate ends. The final settling of accounts cannot be done until the final tax return had been filed AND the state revenue authority has signed off on any further claims. That takes at least one and often two or more years. Knowing their inheritance will take time protects heirs from making reckless or overly optimistic financial commitments.
**Note that in the very common case where the deceased was a guarantor of a mortgage, that obligation does not expire until the mortgage is renewed with a different financial institution or the house is sold. The estate must retain an amount equal to the sum of the guaranteed mortgage until the guarantorship is extinguished. This sum can equal the total value of the estate and so inheritances can be delayed for literally years.

6. Designate a professonional executor service as your executor. Your children and friends will be grieving and serving as executor will trap them in the experience of loss while they wind down your affairs. It also makes them a target for unscrupulous or desperate heirs.

7. Do not presuppose that your heirs will play fair. Dad left the contents of the house to his wife, with the proviso that his children be given any item they requested. With no list of the items in question, and no cooperation on the part of our stepmother or her children, there was no way to enforce that proviso.
**Even co-heirs who normally get along well can be pressured by spouses, children, or sudden financial crises to challenge your will, and have a legal right to do so.

7. If your spouse becomes ill or incompetent, consider passing that spouse's family photographs and heirlooms along to interested children forthwith. These treasured mementos will give much comfort.

8. If you remarry or cohabit, consider selling the family home and moving to a new home with your new partner. This will make things less strained for all concerned. It was very hard to be fair to our new stepmother when she moved in, unexpectedly, and took over our mother's house and things. It was very painful to see our mother being erased in this way.

9. If you remarry, place large assets in trust for your intended heirs. Be open with your new spouse about your estate, and have a prenuptial agreement renewed and re-signed frequently. If our family home had not been placed in a trust, our stepmother could successfully have challenged the will, and been awarded at least half the house (which itself was half of the entire value of the estate), thus neatly doing an end run around both will and prenuptial agreement. Be aware that cohabitation anywhere, no matter whose house or what rental is used, catapults you into common law marriage, in which your partner enjoys all the rights and entitlements of any married person.

Consider the case of our hypothetical wealthy old Uncle Bert, a family friend. After a long and happy life together, his wife passes, but soon, aged 78, Uncle Bert falls in love with an equally weatlhy widow and old friend of the family, Darla. They are very careful to maintain separate domiciles, the same homes they had had before meeting; the family homes each had raised their families in with their previous spouses. They refuse to marry, stating often they do not wish to entangle their respective estates. But they live together, moving between each other's homes and vacation homes. They do very well, but when Uncle Bert passes, it turns out Darla can no longer live independently. Her only child, Jane, asks her to challenge Uncle Bert's will; Jane is in financial difficulty and is under a lot of pressure from her husband to solve it by enlarging their probable inheritance. When Darla refuses to challenge Bert's will, Jane reacts badly. Fearful of ruining Jane's marriage and losing Jane's much needed support, Darla successfully appeals the will and is awarded half of Uncle Bert's estate as his common law wife of 7 years; after the case, her lawyer confides that "old ladies play very well in front of judges". Darla, remorseful, tells Bert's children how sorry she is. But she does not give the money back.

I cannot stress enough the importance of working with your lawyer and accountant to ensure that your wishes are realistic and enforceable. They have abundant experience in what can go wrong, and can structure your will in a way that prevents all those negative events.