The Taboo Of Money- I Will Not Talk About It- Part 2

As discussed in my blog post last week, I am going to post small excerpts of a book I was writing on money taboos which I have abandoned. Last week I suggested you consider a frank discussion with your beneficiaries about your will. Today I discuss four of the eight benefits I see in having a family meeting to discuss your will; I discuss the final four benefits in next weeks blog post.

The Benefits of Having a Family Meeting

The following is a brief summary of what I believe to be the main benefits of having a family meeting about your will:

1. Avoiding Future Conflict - and Litigation!

Fans of Charles Dickens' Bleak House will of course remember the fictional case of Jarndyce and Jarndyce in which generations of family members fought over a large estate until the estate was completely consumed by legal fees. If you don't discuss your will with your children, any perceived actual or perceived inequalities in your will cannot be explained rationally to them, and conflict and estate litigation might well result. Of course, the kids might "lawyer up" despite your best efforts, but at least you have done your best to avoid it!

One of the key reasons for even considering a family meeting to discuss your will is the opportunity it provides for you to outline in a rational manner and hopefully in a calm setting why you have left certain assets to certain children, to charity or to whomever else you have decided to leave assets. It is a bit of a guessing game whether you will have properly perceived what your children perceive as inequalities; but in most cases, it will be obvious.

2. Explaining Intentional Inequities

An example of an obvious and deliberate inequity is where you have left more money to one child than to the others. Where you have left more money to one child (perhaps he or she makes less money than the other children), you can use the meeting to explain why and explain that it has nothing to do with loving that child more, you are just helping him since they have not been as fortunate as the other siblings.

The fallout on this decision may come from two sources. Most of us are familiar with the biblical parable of the prodigal son, in which the first son asks for his inheritance from his father early, blows through all the cash and then goes back to his dad for more. Rather than telling his son to suck it up and support himself, the dad then dishes out even more to the prodigal son, leaving his hardworking younger son angry. Remember that there may be reasons why the children are not equally successful - perhaps the least successful one is also the laziest and most unmotivated of the children. The others may question why they are being penalized in your will for their sibling's lack of performance. It is your right to give your money to whomever you wish, of course, but you should expect at least some resentment from the other siblings should you wish to proceed with this course. Be prepared to justify your decision.

Secondly, and more surprisingly, fallout may not come from the children who are not receiving equal inheritances, but from the child receiving the additional money. They may feel insulted that you feel they have been less successful, and embarrassed by your desire to give them extra help, rather than regarding the extra allocation as compassionate recognition that they require some additional financial assistance.

3. Avoiding Unintentional Inequities

There may be less obvious inequities. There may be consequences arising from your legacies that you did not anticipate, creating unintended conflicts between your family members. For example, in striving to be fair, you may bequeath a cottage or other secondary property to all your children equally, without realizing that doing so actually creates a burden on those of them who do not want the cottage but will be required to pay for its upkeep. You may also miss the opportunity to consider other ways of disposing of your assets, perhaps by intervivos gifts that will ultimately minimize taxes.

4. Clarification of Prior Gifts and Loans

Many of my clients have wanted to help out their kids during their lifetimes by providing them with a little (or a lot) of extra cash. The money might be used for a down-payment on a property, for education or to bail out a child who hits a bad financial spot. The most important thing is that the child must know whether the money was a gift or a loan and whether that money was expected to be an "advance" on the inheritance. How to intend to characterize these gifts or loans is an important issue to discuss in the family meeting, especially where you want to avoid an unintentional inequity if you were to die without making your intentions down and where one child has already received a significant portion of your estate.

The above issue can often be dealt with by utilizing a “hotchpot clause” in your will. Over the years, a legal concept now commonly known as a “hotchpot clause” has evolved to deal with the equalization of the beneficiaries of an estate, where one or more of the beneficiaries have already received money during their parent’s lifetime. When a hotchpot clause is inserted in a will, the clause will prevent a beneficiary (typically a son or daughter) from “double dipping” where the parent intended any money advanced during their lifetime to be considered a pre-payment of an inheritance, rather than an advance over and above an intended inheritance. See this post I had on the hotchpot topic for more information.

Next week I conclude this series with the final four reasons to consider a family meeting.

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Holy Hotchpot—Equalizing Uneven Advances to Children in your Will

Many parents stress unnecessarily, over how thy will equalize their wills, where they have made unequal gifts to their children during their lifetime. Don't fret; today I will discuss a simple "hotchpot clause" that can alleviate your concerns.

Families with the financial wherewithal often advance funds to their “financially dependent” children to fund their living expenses or help with the purchase of a house, to the exclusion of their financially "independent children". In many cases, parents assisting financially dependent children, have the expectation that when they pass away, the funds they have advanced during their lifetime to financially dependent children will be considered advanced on account of those children’s inheritances, not separate gifts above and beyond their inheritances.

I have clearly stated in two of my most read blogs, “Is it Morbid or Realistic to Plan for an Inheritance?” and “A Family Vacation – A Memory worth not Dying for" that where parents have the financial means, it is my opinion that they should consider making partial advances on account of an inheritance while alive. Some readers have stated that they do not agree with my views. However, for today, let’s suspend the debate on whether parents should or should not provide partial advances to their children and assume a situation where a parent has made unequal advances to their children during their lifetime and they want to equalize these advances in their will.

Over the years, a legal concept now commonly known as a “hotchpot clause” has evolved to deal with the equalization of the beneficiaries of an estate, where one or more of the beneficiaries have already received money during their parent’s lifetime. When a hotchpot clause is inserted in a will, the clause will prevent a beneficiary (typically a son or daughter) from “double dipping” where the parent intended any money advanced during their lifetime to be considered a pre-payment of an inheritance, rather than an advance over and above an intended inheritance.

This concept is best illustrated by an example.

Richie and Betty Rich have three children; RJ, Archie and Veronica. Richie and Betty have an estate of $1,000,000. Their son RJ runs a successful comic book store and makes a good living, but is by no means wealthy. Archie, the youngest, suffers from an entitlement issue and has never finished school nor held a full-time job. However, he has always been the apple of Betty’s eye and can do no wrong in his mothers' eyes. Veronica gave up a promising blogging career when she married, but unfortunately her marriage fell apart and her husband left her with two young children.

Over the past few years, Betty has advanced Archie over $100,000 to fund his snowboarding lifestyle. Furthermore, Richie and Betty both have felt the need to advance $200,000 to Veronica to fund the private school education of her children.

It is Richie and Betty’s intention to have their $1,000,000 estate split equally when they pass away, however, they want the funds previously advanced to Archie and Veronica to be accounted for, such that RJ gets 1/3 of their estate, including amounts previously advanced to Archie and Veronica.

If Richie and Betty were to die in a car accident today, their current will stipulates that their estate is to split equally amongst RJ, Archie and Veronica, such that each child would be entitled to $333,333 each ($1,000,000/3), which is not the intention of Richie and Betty.

However, if Richie and Betty had met with their lawyer before they died in the car accident, their lawyer could have inserted a hotchpot clause, such that their estate would be considered to have been $1,300,000 ($1,000,000 plus $100,000 advanced to Archie and $200,000 advanced to Veronica). Thus, when the estate was settled, RJ would receive $433,333 ($1,300,000/3), Archie would receive $333,333 ($433,333-$100,000) and Veronica would receive $233,333 ($433,333-$200,000).

To view an example of what a hotchpot clause may look like, please follow this link. A word of caution; you should always engage a lawyer to draft the clause, as a hotchpot clause must mesh with the rest of your will. 

“From the basis of equitable treatment between beneficiaries, a hotchpot clause is a useful tool” comments Albert Luk, a lawyer at Devry Smith Frank LLP and past contributor to my blog. “However, one must always be aware that a hotchpot clause requires evidence of provable advances to the beneficiaries. Bad (or no) book-keeping may render a hotchpot clause ineffective. The key is to keep good records.”

There is obviously no requirement for parents to be equal and fair to their beneficiaries. However, where parents intend to split their estate equally amongst their children/beneficiaries and yet, have made loans, advanced funds for house down payments or just advanced funds to their children in unequal amounts while alive, their estate planning must include the consideration of those gifts and loans (with proper evidence as noted by Albert Luk above) and they should ensure their lawyer has drafted a hotchpot clause.

Bloggers Note: If you are interested in delving deeper into this topic, Corina Weigl of Fasken Martineau DuMoulin LLP wrote a great paper on this topic in 2001.

The blogs posted on The Blunt Bean Counter provide information of a general nature. These posts should not be considered specific advice; as each reader's personal financial situation is unique and fact specific. Please contact a professional advisor prior to implementing or acting upon any of the information contained in one of the blogs.