A Voice From Beyond The Grave - Part 2 Who Gets The Garden Gnomes And Other Important Issues?

This is the second of a two-part series. A Voice From Beyond The Grave - Part 1: Providing Guidance To the People Listed In Your Will And Related Documents, was published in the June 2016 issue of Canadian MoneySaver.

For some of us, instructions to guardians about how to best raise your children and guidance to trustees about how to tight or loose to draw the purse strings in different situations are probably the most important things to advance. While my first article in this series (Canadian MoneySaver June 2016) addresses these issues, today’s ramblings focuses on several other matters that can go horribly wrong if you don’t provide some extra to those left behind, no matter how well-crafted your Will. I’ll also add a few thoughts about some things to address with the people entrusted to take of you if you’re ever unable to make your own health and personal comfort decisions. But first, let’s start with the Garden Gnomes...

Divvying Up Your Personal Possessions

The biggest bones of contentions between those left behind can sometimes be how to divide your personal effects, particularly those with sentimental value. There are a lot of different ways of addressing this, although I suspect that if your heirs are inclined to feud anyway, a perfect solution may be impossible to find. I often include language in my Wills stating that my clients might write a letter distributing their personal effects that their Trustee can implement without getting sued by those who feel hard done by. I then suggest a way of distributing personal assets by picking in turns, with the Trustee allowed to pay any equalization payment in the event that the first child to choose selects the family Lexus, while the second settles for the espresso machine. I also allow the Trustee the right to liquidate the assets in situations in which it appears the heirs won’t get along.

On the other hand, this isn’t the only way of doling out the silverware. Some clients gift significant mementos to their heirs while they are still living in order both to avoid a fight later and perhaps get the benefit of watching their heirs enjoy the heirlooms and keepsakes. Others write the names of intended beneficiaries on masking tape and adhere it to the backs of key items. I’ve also heard suggested that the heirs might actually bid on these assets (although I have concerns where this might lead in some cases).

In any event, it might be useful for some families to sit down in advance and resolve these questions together in the hope of finding either common ground or at least an acceptable method of later distribution that won’t leave your descendants glaring across the dining room table for years to come.

Locating and Accessing Your Stuff/Connecting With Your Advisors

Changing directions slightly, on a more practical level I recommend making sure that your executors, trustees, and the people you appoint under a Power of Attorney not only know what you own, but have access to whatever account information and passwords are necessary for them to actually do their jobs. Even better, if you also have an accountant who knows your affairs better than you do, an insurance advisor who knows all eighteen policies you own, and an investment maestro who’s like one of the family, make sure your representatives have their contact information. Another idea — particularly if describing your affairs as “complicated” is an understatement — is introducing everybody now, and explaining your financial affairs and how you’d like things handled. Want to ensure that your representatives continue to work with your pros (particularly on the investment front, if you’re setting up trusts that could be around for a long time after you are not) rather than your son’s wife’s brother’s university buddy? I urge you to put this in a letter, if not actually directly into your Will.

What To Do With You After You're Dead

Turning even more ghoulish, I suggest you take the time to spell out any funeral and burial wishes you have in advance. Some people even sit down with a funeral planner to spare their families the surreal unpleasantness of having to figure out their dearly departed’s wishes at a time when there is already too much to handle. If you aren’t willing to take it that far, consider drafting a letter specifying a few things, e.g.,

Whether you want to be cremated or buried and where you want to be interred.

Do you want something elaborate or simple? If you are worried about your representative getting guilted into buying the two-ton mahogany casket when a pine box will do, even indicating you want to keep things inexpensive might ultimately save your estate a big bill.

• Do you want a wake, a celebration-of-life event, or any other sort of commemorative ceremony? Any guidance in this area is generally much appreciated.
• What is your charity or organization of choice?
• Do you want any sort of religious or non-religious service?

How to Take Care Of You When You Can't Take Care of Yourself

Staying on the morbid side of life, I also find that many clients don’t communicate with their families regarding their health and lifestyle wishes in the event they are not able to make those decisions for themselves. Fortunately, there are both Advance Directives and Representation Agreements in B.C. to assist on this point. The former document is actually a legally binding statement of your decisions regarding certain health matters (such as terminating life support in hopeless cases), while the latter legally binding document names the individual(s) you want to make that decision when the time comes, along with as much guidance as you’d like to include (even very specific directions if you’d thought some of this out in advance). I highly suggest getting the Representation Agreement in particular done if you have any concerns about ensuring you’re put in a quality home and your loved ones know your wishes in a variety of situations, but even a letter spelling out these wishes is definitely better than nothing. Some of the things I’ve put into Representation Agreements and might be mentioned in a letter include the following:

• Specifics on your desired future accommodations, such as number of people to your room and geographic location, or if you want to be located close to certain family members.
• What amenities would make your life brighter, such as the colour of the walls in your room, the provision of regular flowers, pictures from home, exposure to music, a glass of wine at night, a paid companion to read to you or take you for walks, and services such as hairdressing, massages, manicures and pedicures.
• Any medical treatments you would never want, such as lobotomies.
• Any wishes you might have if kept alive by a machine.

A Final Goodbye

Finally, sometimes it is just nice to simply say goodbye. Perhaps a note or even a video to those you’re leaving behind might be a way of making a very sad time just a little brighter. Likewise, you might take a final opportunity to remind your family of the values and wishes that are really important to you — such as being there for each other and continuing to spend time together. Although there is no guarantee your wishes will be followed, I strongly suspect that a mother’s plea for her adult children to continue sitting down for holiday meals delivered from beyond the grave would go a long way to ensuring that her kids still share turkey with each other a few times a year.

Conclusion

In the end, I’ll go back to where I started and merely reiterate this: a good Will is only just a good start. Although it’s vital to indicate who gets what and under what terms in a legally binding document that can survive court challenges (and is clear enough to avoid misinterpretation), there is still plenty of room for confusion, misunderstandings and unintended outcomes in even the best-crafted Will. In reality, a lot of the time, will-makers leave much to the discretion of the people they appoint to manage their affairs and raise their children. While this is as it should be to a certain extent — I mean, who knows how the future will unfold? — providing a guiding set of principles that can be taken into account would vastly increase the chances of the people you nominate being equipped to proceed as you would have. On a more practical level, ensuring these people know where to find your information and have the contact information of those they can rely upon to help them shoulder the load can only make their jobs easier. Ultimately, whether these extra steps are worthwhile is up to you. For those of you, however, whose to-do lists just got a little bit longer, I believe someone will thank you for it someday.

Colin S. Ritchie, LL.B., CFP, CLU and FMA is a Vancouver-based fee-for-service lawyer and financial planner who does not sell investment or insurance, just advice. To find out more, visit his website at www.colinsritchie.com.