Estate Planning Basics: (2nd Installment); I Want To Avoid Probate!!

She is gone to heaven, but we still feel her presence. . . .

The China Cat Syndrome

Often, the problems associated with “probate” are really the product of confusion on the part of the recipients of the testator’s bounty. One story I often share with my students concerns a china cat which was located on the window sill of the mother’s home. Mom had three children, two daughters and a son. When the eldest daughter was only eight, she asked her mother about the china cat that was always on the window sill in the kitchen and told her mother how much she liked it. Her mother explained that that cat was a gift to her from her mother and that it wasn’t valuable, but it had a lot of meaning to her. She on to say that upon her death, the eldest daughter could have that cat.

Many years later after Thanksgiving dinner, the younger daughter asked about that cat while she was doing dishes with her mother and told her how much she enjoyed it. Mom, having forgotten the earlier conversation with her older daughter, told her younger daughter that she could have that cat when she died.

Several years later, after mom died, her son was in the house organizing things for distribution after his mother’s recent death. His older sister called and remarked that she wanted to come over and pick up a few things. He said, “Sure, your sister was over earlier and got some things as well. Come on over.” His sister said she wanted to pick up the china cat that her mother had given her. Her brother then remarked, “Oh, your sister already got it and said that mom wanted her to have it!”  With that, his sister hung up abruptly after saying, “I have to go.”

She called her sister immediately and the conversation went along these lines. . . “Hey, I hear you stopped by the house earlier and got some things, including that china cat that was in the kitchen. Is that right?”  Her sister responded, “yes, mom gave it to me!”  Older sister said, “What! You are mistaken, before you were born mom told me that I could have it!” The younger said, “You were at the house on Thanksgiving two years ago, and you were even in the kitchen when mom and I had a conversation about that cat when she told me I could have it, don’t you remember?” No, said the older “because that never happened”. “Well”, said the older, “if that is true, you would have taken it then! So, I don’t believe you!”

And, so it went until eventually, threats of lawsuits were made, no matter how much it cost. Each one tried to outwit and trump the other until it ended when they both hung up, never to speak to one another again.  You know these two. We all have family members who no longer speak to one another due to these types of conflicts. And the truth is that it really wasn’t about the cat. It was about gaining mom’s favor, and love, and attention – especially after she is gone. Those sisters fought when they were young and those sibling rivalries never really went away. They just went undercover.

Yet, many people attribute problems in probate with the process.  It is not the process that is the problem, it is the people!  So, how do you avoid the problems that create these tensions? First, make a statement of love and affection for all of your children and grandchildren in the first paragraph of your Will. Tell them that the things devised in the Will are not the things of value that you are leaving them. The past memories which you shared and wishes for their future happiness are the most valuable gifts that you leave behind. Under Michigan law, you can attach a list to your Will to identify those things you own that you desire each loved one to take upon your death. If done correctly, it will leave no doubt how you want your personal effects distributed.

Finally, include a provision that upon your death, your personal possessions should be distributed first, according to your express wishes in you Will, (such as those items identified in your list), and second as they should agree among themselves. Finally, if there is a disagreement among two or more of them concerning items that remain, they should draw lots and in order of those lots be allowed to select items in that order until all the items remaining are selected. If there are items left that no one selects, those items can be donated or sold and the proceeds divided equally.

You should consult a lawyer to make sure that your documents meet the requirements under the laws of your state and that you receive proper counsel how to accomplish this.  It is the wise counsel that only an experienced attorney can give to help you avoid the “probate” problems that could be avoided with proper planning.