Settling the Estate

It’s important to get along and be fair after a loved one passes away.

When a loved one passes away, families are faced with the task of settling the Estate. If the decedent did not have a Will, the property in the Estate passes Intestate—or without a Will—according to the laws of the state. If the decedent had a Will, the property passes according to the terms of the Will. The person nominated in the Will applies to the court to be appointed the Personal Representative. When appointed, he or she has the following duties: secure and inventory the property in the estate, distribute items listed on the Tangible Personal Property List, identify any outstanding obligations or debts that need to be paid and distribute the remaining property to the heirs, or those named in the Will.

Even with the directions that our loved one has left in his or her Will, families often come together to make decisions on how to settle the Estate. When a family comes together to wind up their loved ones’ Estate, the meeting may be unfocused and unproductive due to a lack of planning and unclear objectives. Things may not go well due to haphazard thinking, with discussions proceeding in a ”grasshopper” fashion, jumping from topic to topic. Participants come into the meeting with different values, objectives and abilities. All of this can lead to an unproductive meeting, resulting in conflict between the participants. So, a strategy is needed for these meetings to bring about collaboration, better focus, fewer arguments and better results. Let me suggest some ideas for these meetings that will help families work together and foster greater collaboration.

  1. Include everyone. Give advance notice of the meeting and all members should be present if possible, or included by a conference call!
  2. Have a Facilitator. Choose one member of the group to be the facilitator of the meeting. Typically, this would be the Personal Representative of the Will or the Trustee of the Trust.
  3. Have an agenda. Make and give all the members an agenda of the topics to be discussed at the meeting. Members can give topics they want to discuss to the facilitator prior to the meeting.
  4. Set ground rules. The facilitator should begin the meeting by reviewing the objectives of the meeting and establishing the ground rules—for example: how will decisions be made. It is important that everyone feels safe to talk and express their opinions.
  5. Follow the agenda. The facilitator should announce the topic to be discussed and ask members of the group if they would like to express their opinion. Caution! This is a time for discussion to get everyone’s opinion out on the table. No decisions should be made at this part of the meeting, and all ideas should be considered.
  6. Make a decision. If the group has reached a consensus, the facilitator may state his or her understanding and ask the group if they agree. The facilitator could also ask the members of the group to suggest a course of action to take. If there is not unanimity among the members, the facilitator should call for a vote. Some decisions may be made by majority vote, while others would require a unanimous vote. For example, to change the distribution provisions in a Will or Trust would require the unanimous consent of all the affected parties. Copies of the relevant provision of the Will or Trust should be provided to all the members of the group.

Families should carefully decide how personal property with sentimental value is divided. Some families place a number on each item of property and then have the members draw a number. Others have each person list their top 2 choices and then work out a division based on those preferences. If no decisions are made and the meeting is adjourned, no one should take action on what they “thought” had been decided or what “they think is in the best interest” of the group.

  1. Decide the next action. Once a decision has been made, decide the next action to take to achieve the desired results, who is responsible to take the action and when it should be finished.
  2. Keep minutes. It may help to record the meeting in case there is a disagreement as to what was decided. In any event, minutes should be kept of the decisions made and the actions to be taken and distributed to the members of the group.

There will need to be follow-up and subsequent meetings may need to be held. But by proceeding in a structured fashion as outlined above, there will be less misunderstanding, greater harmony and a greater likelihood that the group will work together productively, and the desired results will be achieved.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

March 2020