Article on Holistic Planning

A new television program recently premiered on Investigation Discovery (ID), one of the Discovery Channel’s crime-focused cable networks. The program has been given the rather salacious title, “The Will: Family Secrets Revealed,” and the pilot episode lives up to its name. As the show unfolds, the narrator presents the Tipton family: an intestate matriarch, Kitty Tipton-Oakes, leaving a $300,000 estate; three missing adopted sons, two of whom have not spoken to their mother in years, and one who believes that he was not, in fact, adopted; a woman who may or may not be Kitty’s natural child; and a legacy of child abuse, domestic strife, and family secrets. Complications ensue when it is discovered that none of Kitty’s sons were legally adopted and thus cannot inherit under the local descent and distribution statute. What follows is a lengthy legal battle, not only pitting the Tipton sons against state code and a possible sister biologically related to their mother, but eventually against each other.

Although few families can lay claim to a domestic drama as sensational as that of the Tiptons, the sad fact reflected by this new series is that interfamilial will and inheritance contests have become an acceptable-if not common-occurrence in the United States in families with adult children. The results of such contests can be devastating to both the “social fabric of families . . . creat[ing] decades of ill-will,” and the estate itself. The aftermath of the Tipton legal quagmire is typical of many others: the family remains estranged, and the $300,000 estate was devoured by court costs and attorneys’ fees. This destruction is all the more upsetting because, although lawsuits like the Tiptons’ inevitably involve disputed sums of money, at their core, will contests often serve as an inadequate means of resolving or simply continuing ongoing family arguments.

In an attempt to avoid the time, expense, and emotional drain of an interfamilial court proceeding, many probate lawyers have used mediation techniques to resolve issues arising post-mortem; this method of alternative dispute resolution “has been remarkably successful in relationally-sensitive areas of the law.” Others, however, have begun to make “preemptive strike[s]” on potentially contentious gift schemes during the estate planning period through a process known as holistic estate planning.

The critical difference between traditional and holistic mediation is timing. Holistic estate planning adopts the same strategies used in post-mortem mediations, but does so much earlier-in the initial stages of the estate planning process, and perhaps many years before the testator will actually pass away. During the holistic mediation process, the testators and their adult beneficiaries-typically a family of parents and grown children-participate in a series of conversations. These conversations-primarily facilitated by a family systems specialist with the help of the estate planner to explain any purely legal or financial matters-allow all family members to “discuss their views openly, clear up misperceptions and misunderstandings, and resolve estate and trust conflicts by building consensus.” Significantly, this process not only occurs before any conflict over the estate plan has developed, thus forestalling post-mortem litigation, but may also inform the estate plan itself, as parents respond to their children’s goals, concerns, or financial needs.

The crux of holistic estate planning, and the reason for its great success in anticipating and preventing post-mortem family conflict, is its encouragement of full and frank communication among family members on a subject that is often never discussed between parents and children: money. Children in families with a significant-or even comfortable-level of wealth often grow up uncertain of what their parents do for a living, much less how much income that living generates. While children in their teens and twenties may have some generalized idea of their family’s financial position or day-to-day purchasing ability, they will almost certainly be unaware of specifics: debts and other obligations, income generated or lost through capital assets, retirement savings or lack thereof, etc.

While much of this secrecy is practical in children’s formative years-children have no need to understand complex family finances even in general terms, parents don’t want to be badgered for spending money, and there is, certainly, the ever-present fear that Junior might broadcast to his friends how many zeroes are on his Daddy’s paycheck-it often continues beyond the age when adult children are financially independent (often with their own families) out of family or social custom. Many adult children worry that they will be perceived as greedy if they ask parents about plans to transfer money at death. Parents, in turn, worry that the certainty of a future inheritance will encourage idleness, or that knowledge of an estate plan will force them to “deal with the . . . complex and sometimes irrational feelings of family members.”

Of course, the unpleasant specter of death looming over the estate planning process is as real and problematic as that of family tension over the forthright discussion of money. The majority of Americans die without a will. Although this percentage decreases as the size of an individual’s gross estate increases, a significant proportion of individuals at all wealth levels neglect to make plans for the transfer of wealth at death. One of the reasons commonly given for this neglect is that estate planning inevitably forces the planner to contemplate his own mortality.

Holistic estate planning exacerbates this reflection on two fronts. Firstly, it prolongs the estate planning process to allow for meaningful input from all interested parties. Secondly, it involves the entire family in the estate planning process, thus not only forcing the testator to consider his own death, but also obliging family members to consider the death of a loved one. Adult children may be lesser equipped to deal with this consideration than their parents. Parents, in turn, might wish to shield their children from unpleasant pecuniary necessities.

Candid conversations both highlighting and incorporating the topics of money and mortality are crucial to the accomplishment of holistic estate planning’s goals. Failing to share estate plans openly within a family will not only frustrate the estate planning process, but lead to feelings of distrust among its members. Nevertheless, many potential testators and beneficiaries may be unwilling to take advantage of holistic estate planning simply to avoid these topics. Even within those families that do use this method of mediation, individual family members may be reluctant to participate wholeheartedly in the process for this reason. Unexpressed thoughts, opinions, and emotions cannot be meaningfully incorporated into the estate planning process, and may crop up later in the form of will contests or other interfamilial litigation.

Therefore, an estate planner who hopes to encourage a particular family toward holistic estate planning-and, further, to make full use of the process’s benefits-must first overcome the innate unease many families suffer when faced with serious conversations detailing such private subjects as personal finances and the impending loss of a loved one. This note attempts to offer estate planners practical advice in doing so. Part II will take a more in-depth look at the holistic estate planning process, particularly examining those situations in which it is most helpful in preventing estate contests. Part III will scrutinize common social conventions against discussions of money and death, and the real problems such conventions pose to holistic estate planners. Part IV will offer practical instructions to estate planners for overcoming these social conventions in a way that will encourage testators toward holistic estate planning and allow them to fully avail themselves of the process.