A Voice from Beyond the Grave: Providing Guidance to the People Listed in Your Will and Related Documents

Most people quite rightly feel pretty good about finally signing their Wills and related documents such as Powers of Attorney and Representation Agreements. They have taken a huge step toward making sure the right people get the right assets at the right time, that the right people are empowered to make the appropriate decisions, and that their healthcare choices are clear, all the while hopefully ensuring that those left behind are still able to sit across the table from each other at family gatherings without needless bloodshed. On the other hand, as I generally point out in my egregiously long reporting letters after the fact, their work may not be quite done.

Although the Will may be the most important piece in their estate plan, there are a bunch of extra actions the “will-maker (a fancy new term now used in B.C. to describe a person who signs a Will) can take to bump up the chances of success while reducing the ibuprofen intake of their trustees, guardians, representatives and attorneys along the way. This is information many people may not have considered. Accordingly, I plan on spending the next few pages telling you exactly what I mean.

Guiding the Guardians

To begin with, I suggest thinking of your Will as a skeleton that provides the basic framework for what we lawyer types like to call your “testamentary wishes.” It spells out who is to get what and on what terms, often naming people like trustees and guardians to implement your wishes. No matter how well your Will is drafted, however, I believe that most of the time there are a lot of steps you can take yourself to put flesh on this skeleton. For example, although you’ve chosen who will be responsible for driving your kids to hockey practice if you’re not around to do it yourself, your Will probably doesn’t provide much guidance regarding what values, activities and lifestyle choices you want them to nurture in your children. Along these lines, here are just some of the issues you might want to address from beyond the grave — although I suspect that sometimes a list of general principles (such as encouraging your children to explore culture and music) might be more useful in some cases than specific decrees (such as compelling your kids to take violin lessons even if they hate it and would rather dance instead):

• Are there certain hobbies or sports you want to ensure your kids pursue, such as music, swimming lessons, team sports or art?
• Are there any cultural or religious matters you would like your kids to continue, such as going to church or learning your native tongue?
• Are things like a summer job, doing volunteer work, travel or spending vacations with your relatives (and which ones) things to mention?
• Dating?
• Do you feel strongly about such things like limiting time in front of the TV, computer or cell phone, ensuring your kids learn the basics about cooking, cleaning and personal finance (my own favourite), or making sure your kids eat organic or stay away from food out of vending machines?

Tutoring the Trustees

Moreover, even if you’ve clarified that your kids are to spend their summers volunteering to assist the less fortunate, subsist on an organic diet, or have their electronic time limited to precisely two hours per month (assuming, of course, that they have the time to do this after devoting most of their spare time to learning interpretive dance and playing the ukulele), there may still be a glaring hole in your directions. Although the people caring for your kids might know precisely what you have in mind, there could still be big problems if the trustees aren’t aware of this vision and as a result aren’t willing to fund it. As well, even if your instructions to your guardians are enough to give your trustees guidance to handle the money side of things while your kids are minors, there are a panoply of additional money issues that may need to be resolved when your kids are old enough to vote, shave and drink microbrews. Here are just some of the things you could address in a letter to your trustees:

• Whether you want your trustee to fund your kids’ world travels at some point: If your answer is yes, when and for how long? Some parents encourage their kids to see the world after high school, while others want their kids to keep their noses to the grindstone until after university; others still might want to prioritize other expenditures, such as saving for a first home. Also, even if you are in favour of your children spending some time abroad, you might not be so keen if this journey lasts two years rather than the three or six months you’d originally envisioned. Also, do you contemplate your children living out of a knapsack and staying at youth hostels, going 5-star all the way, or something in the middle?
• Should your trustee buy your young ones a car or do they need to save for it themselves? Do they get new wheels when they turn 16 or only when going off to university? Do they get something fresh from the showroom or merely something “new to them”?  If you have a strong environmental bent, would you be happiest if they are parking a hybrid in the driveway or perhaps just a bicycle?
• What sort of guardian expenses are reasonable to you? Most parents do not want their kids’ guardians to suffer economically for taking on this role, but how this plays out is certainly open to interpretation. Noting that the person managing the money and the people managing your kids are often not one and the same, guidance given now means fewer awkward conversations later. For example, should your trustee pay for your guardians to go on vacation with your kids, or pay rent if your guardians have to buy a bigger home to house your offspring?
• What standard of living do you wish your children to enjoy? Do you want them to have to struggle a bit so that they learn to budget, work hard to build a career, and know what it’s like to take on a mortgage, or would you rather they want for nothing?
• Do you prefer that the trustee continue writing big cheques even if a child shows no intention of going to school or building a career, or reduce or cut off payments under such circumstances?

Who Gets the China and the Garden Gnomes?

I’ve heard in many cases that the biggest bones of contentions between those left behind are deciding how the personal possessions are to be divided. 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.