The caller, a woman, had been named over her two brothers as executor of her father’s will. The three siblings were close, but there was a problem.

The departed father had among his possessions a 1967 Mustang in mint condition — which both brothers coveted — but in his will he simply directed his daughter to divide everything equally.

“She told me she ended up selling the car so no one would have it,” Kotzer said. “As a result, it created a family war.”

This is just one of a legion of horror stories involving faulty estate planning. It’s so commonplace that Kotzer and law-practice partner Barry Fish (among many others) have written a book about the topic — The Family Fight: Planning to Avoid It.

Vancouver-based financial advisor Clay Gillespie of Rogers Group said wills can be complex documents that can work against the intentions of the under- or ill-informed.

The most common pitfall he sees in his practice is a parent arranging his or her estate in joint ownership with the eldest son or daughter to avoid probate (a tax of 1.4 per cent).

“The idea is that upon the parent’s death it will pass to the son or daughter, who can pay the tax on the estate and then divvy it out to the remaining children,” said Gillespie.

“But there are four things that may go wrong. He or she may get divorced and the marriage partner gets half; he or she may get sued and lose part of the assets; he may go bankrupt and lose it to creditors; if there is a falling out among the family members, and he or she decides not to give out the assets to one or more of the family members, they have no legal recourse.

“None of this is about money; it’s about being fairly treated.”

The potential for family fireworks is on the increase as the Baby Boomer generation — and its elderly parents — head into an era where the largest transfer of wealth in history is about to begin.

A recent Ipsos-Reid study for Lawyers.com found that just 69 per cent of Canadians at least 55 years old have had a detailed discussion with their family about their final wishes. Gillespie said the problem rests more with the Boomers than with their parents.

“The parents are interested in dealing with this, but it’s the children who are resistant, who don’t want to think of them dying,” he said. “Their parents came from a generation where being prepared was just something you did.

“The Baby Boom generation believes they are going to live forever, so they’re not spending as much time on it as their parents are.”

Kotzer said the language of wills can also be intimidating to the layperson. “It’s written for lawyers and judges,” he said.

So, where do you start if you haven’t written a will or haven’t updated an existing one for a long time?

Gillespie said reading some of the many estate-planning books out there is a good idea, but don’t get too caught up in the details.

“The question you have to answer is: ‘What do I want to have happen to my assets and affairs upon my death?’ Once you make that decision, a professional can put it in place,” he said.

Gillespie cautions against using the numerous do-it-yourself will kits available, unless the final document is checked by a professional.

Another drawback to drafting your own will is that it isn’t kept on file by a lawyer, or doctor, so it could be misplaced — meaning kilometres of red tape.

Industry professionals also strongly recommend putting together a Continuing Power of Attorney document, in the case you become mentally incapacitated due to injury or illness, so that a trusted family member or friend can make decisions regarding your assets.

Also recommended is a Representation Agreement, which allows for the appointment of a person to make decisions about health and personal care in cases of physical incapacity.

Gillespie said a straightforward will can be processed by a notary public, although he recommends working out the details first with a professional advisor.

If trusts or other complicated issues are involved, a lawyer should be used, he said.

Typical fees for wills start at about $200 but can go up into the thousands, depending on complexity.

PREPARE FOR THE WORST

Wills-and-estates lawyer Les Kotzer offers the following tidbits for thought with regard to estate planning:
– Don’t assume that equality is always fair. How is it fair to leave the same to the son who got $100,000 to go to university during your lifetime when the other son didn’t?
– Don’t assume goodwill between your children. You have to talk to the children and discuss individual items.
– Don’t assume that one of your kids wants to be an executor. It’s an issue of power, so be very careful who you appoint.
– Be sure to update your will on an ongoing basis. It should be done every three to four years or sooner if a change in the family has occurred.
– Talk to your children now, because you are the referee. Once the referee is gone, all bets are off.

Kotzer’s book, The Family Fight, is available through his website [www.familyfight.com] for $29.99.

© The Vancouver Province 2005