Kerri, Julie and Mike Kasem have asked a judge to dismiss their wrongful death lawsuit against their stepmother, Jean Kasem, 64, as part of a settlement after a four-year legal feud.
While these cases make the headlines due to the celebrity status of the parties and the amount of money involved, dramas like this for much smaller amounts happen all too frequently. Death and money can bring out the worst of family dysfunction.
How can families prevent this kind of outcome? There is no simple answer, and if the dynamics among the family are already toxic, then it’s even more important that families have a solid, written plan in place before incapacity strikes. It may not have prevented the accusations of wrongful death between the parties, but it could have created a structure of care and wealth distribution that could have neutralized or minimized any incentive for the parties to commit a wrongful death offense.
Unfortunately, no estate plan can prevent an immoral or illegal act; nor can it instill character in the lives of others.
A recent article written by Joe Pinkster for the online magazine, The Atlantic, discusses the issue of inheritance, and specifically whether there exists a magic number that represents an inheritance that is too large[1]. This question has become relevant for many reasons, one being that some wealthy parents are concerned that after a certain point, money passed down will be damaging to the next generation, removing the incentive to be productive contributors to society.
This is not a new question. King Solomon in the Old Testament, clearly pondered the same question during a particularly dark time in his life:
I hated all the things I had toiled for under the sun, because I must leave them to the one who comes after me. And who knows whether that person will be wise or foolish? Yet they will have control over all the fruit of my toil into which I have poured my effort and skill under the sun. This too is meaningless. So my heart began to despair over all my toilsome labor under the sun. For a person may labor with wisdom, knowledge and skill, and then they must leave all they own to another who has not toiled for it. This too is meaningless and a great misfortune.
ECCLESIASTES 2:18-21 NIV
The question is, should this be a concern of most families given the fact that most people won’t receive vast fortunes from their parents? In fact, research by the Federal Reserve indicates that 85% of inheritances between 1995 and 2016 were less than $250,000 and most were less than $50,000.[2]
From my personal life and professional experience, I have formed this observation: sudden money will bring out a recipient’s best or worst financial behaviors to the degree that they have been prepared for it, regardless of the amount. This is not to say that mistakes with inherited money are necessarily a bad thing. Speaking for myself, the lessons that I have learned through failure are some of my more life-changing ones, and I wouldn’t trade the failures for successes without the lessons.
For those inheriting less than say, $50,000 – the impact of learning through failure isn’t as financially devastating as burning through $5 Million. Older parents who are concerned about their adult child’s ability to manage up to perhaps a $150,000 inheritance may want to consider these less elaborate (and less costly) options than leaving their assets in trusts or other complex arrangements:
Leave it to them unfettered and simply let them do their best with it and hopefully learn a valuable lesson in the process. Losing $50,000 for buying an RV rather than saving it for retirement may be a painful lesson, but one they can likely recover from.
Consider leaving the money to a grandchild’s education account such as a 529 Plan, instead of outright to the adult child-parent.
If the inheritance is paid through an insurance policy, discuss the policy’s settlement options (how the death benefits are paid to a beneficiary) with your insurance agent. One option may be the payment of a monthly amount spread out over a number of years which cannot be altered by the beneficiary.
One exception to these simpler options is if the adult child has a physical or mental disability and receives government assistance such as Medicaid. In such case, working with a Medicaid attorney to create what is known as a Special Needs Trust, may be necessary to preserve these benefits, but this has little to do with the behavioral issues that concerned Solomon or many families today.
What about the small percentage of significantly larger inheritances? Should families be concerned about how the sudden impact of substantial financial windfalls will affect those who inherit? My response is a resounding YES not only to preserve the wealth left to these beneficiaries (The Sudden Money Institute, a think tank and financial consultancy specializing in planning for life transitions such as inheritances, claims that 90% of inherited wealth disappears by the third generation), but also because inheriting sudden wealth can be difficult emotionally as well.[3]
For over two centuries, wealthy Americans have used trusts and other elaborate means to preserve family wealth or family-owned business enterprises, control heirs’ behavior from the grave, or provide financial tutelage until heirs demonstrate the ability to responsibly handle their wealth. Trustees – those who control the purse-strings for these wealthy heirs – are required by law to act in the best interest of these heirs. A good trustee will assume the roles of surrogate and mentor with the beneficiaries under his care and like a good parent, will sometimes allow the beneficiary to fail small in order to learn valuable lessons for when the beneficiary may have responsibility for a much larger fortune later on.
However, no estate plan can instill character regardless of the sophistication of the plan. A healthy work ethic, compassion, integrity, loyalty, fidelity… these are ultimately behavioral choices we all must make, no matter how wealthy we may become. Perhaps this was Solomon’s true lament.
[1] Pinsker, J. (2019). How Much Inheritance Is Too Much? [online] The Atlantic. Available at: https://www.theatlantic.com/family/archive/2019/10/big-inheritances-how-much-to-leave/600703/ [Accessed 29 Oct. 2019].
In yet another case of family member trustees gone wrong, Former St George Illawarra Dragons star Mark Gasnier has accused his brother of taking funds from a family trust as part of a long-running dispute.
Mark Gasnier and his brother Dean, are co-trustees of a family trust apparently established by their parents. According to the complaint, Dean, without the knowledge of Mark, made a number of withdrawals from the family trust and even went as far as faking the signatures of his parents John Gasnier and Janene Gasnier on financial documents including tax returns. The case is headed to the New South Wales Supreme Court.
Appointing an institutional corporate trustee might have prevented the dispute since corporate trustees typically include layers of checks and balances designed to prevent unauthorized withdrawals from occurring. If families still want someone within or close to the family involved, then appointing them as co-trustee with limited authority is a possible solution.
Perhaps this sibling rivalry should have been left on the Rugby pitch!
A recent Barron’s article discusses ways in which adult children can protect their parents from financial fraud. Elder Financial Abuse is estimated to defraud older Americans of somewhere between the disparate estimates of $3Billion to $35Billion a year. The large disparity is due to the number of data sources, and estimations of unreported abuse, but suffice it to say, it is a problem.
While the elaborate means scammers take to defraud our aging parents of their resources are popular to write about, focusing on these threats ignores where 85-90% of defrauding takes place – within the immediate family of the victim. According to a report by the National Committee on Aging,
Over 90% of all reported elder abuse is committed by an older person’s own family members, most often their adult children, followed by grandchildren, nieces and nephews, and others.
Source: National Committee on Aging
My friend and colleague, Cynthia Healy, has years of experience investigating elder financial abuse, and she produced this short segment on family theft. Other resources can be found on her website gogrey.com.
The best way to address this 800 lb gorilla is to teach the virtue of honor in our family systems, and specifically how honor shapes the attitudes or actions that we take towards our elderly parents and/or their resources. Much of the familial elder financial abuse is subtle and occurs out of a sense of entitlement, the perpetrator justifying his actions under the guise of “mom won’t miss this.”
Still for those adult children who do honor their parents and their parents’ possessions, these articles offer practical and relational advice.
To help aging parents protect themselves, their grown children must tactfully broach the subject of their vulnerability. The key is to adopt an attitude of empathy and non-judgment, says Amy Nofziger, director of fraud victim support at AARP, an advocacy organization for older Americans. “Always start the conversation with empathy and compassion, and don’t be paternalistic,” she advises.
A woman fighting for her multi-million dollar inheritance might have to forfeit the entire fortune to charity thanks to a poorly-written will — a case that has raised questions about the rights of unmarried gay couples and their children.
Jill Morris, died of breast cancer in 2016 at age 84 and left a multi-million dollar estate to her long-time partner, Joan Anderson, with whom she had an 18 year relationship. Anderson died of a stroke just 12 days after Morris, and, according to Morris’ last will and testament, her estate was to be divided among three charities if Anderson did not survive her by thirty days.
A Manhattan Surrogate Court Judge has ruled that the estate belongs to the charities. Emlie Anderson, Joan Anderson’s daughter claims the judge should have known that Morris would not have included such “harsh wording in her will.”
It’s upsetting to me. It’s like they’re trying to negate my mother and her relationship with Jill, she told the Daily News. That’s what they’re saying, that their relationship wasn’t important.
Sometimes hearing a familiar principle from a different cultural context makes it seem more interesting, less banal; the same way that eating pizza prepared by a street vendor in Rome would taste better than my local delivery pizza simply because it was made in Rome. Most westerners are familiar with the fifth commandment in the Bible:
Honor your father and your mother, as the LORD your God has commanded you, so that your days may be long and that it may go well with you in the land the LORD your God is giving you.
Deuteronomy 5:16
However, other cultures and traditions also incorporate the concept of honoring elders into their belief systems as well.
Take also the concept of Filial Piety – one of the eight virtues of Confucianism. Scholars attribute the Eight Virtues to a line in the Sage Emperor Guan’s Book of Enlightenment:
“It is through Filial Piety, Sibling Harmony, Dedication, Trustworthiness, Propriety, Sacrifice, Honour, and Sense of Shame that we become fully human.”
Filial Piety means to be good to one’s parents; to take care of one’s parents; to engage in good conduct not just towards parents but also outside the home so as to bring a good name to one’s parents and ancestors. The Fung Loy Kok Institute of Taoism expounds on this general definition:
What is filial piety? There are many aspects of filial piety. The most important of them is to honor your father and mother and attend to their needs.
By “honor” it is meant that you should maintain good conduct and never do things which will shame your parents or make them unhappy.
You should be hard working in family affairs.
You should be frugal in spending and not waste family resources.
Siblings should live in harmony.
In your interactions with other people you should be honest and sincere. Do not be deceitful. In all your actions be humble, be courteous and considerate of others, be proprietous and refrain from shameful thoughts and actions.
You should also attend to your parents’ well-being. There are three basic needs you must provide for your parents. First, you should provide for their food and clothing. Second, when they are ill, you must take responsibility for nursing them back to health. Third, when they die, you must provide them with proper burial and care for their graves.
As a son or daughter, whether you are rich or poor, whatever profession you are engaged in, whether you are married or not, whether you have children or not, if you can perform these three deeds with sincerity and dedication, your parents will be happy while they are alive and rest in peace when they are deceased. Your parents cared for you without selfish interests. Your mother carried you in her womb for ten lunar months and nursed you for three years. Your parents constantly tended to your needs while you were growing up. You should show your gratitude to them by fulfilling the virtue of filial piety. Filial piety has many aspects. As long as each is performed with all your heart, this virtue is fulfilled. Whatever you do for your parents, do it with goodwill and sincerity.
I think we can all agree that the world could use a little more Filial Piety.
An increasing number of Americans ages 50 and older are in cohabiting relationships, according to a new Pew Research Center analysis of the Current Population Survey. In fact, cohabiters ages 50 and older represented about a quarter (23%) of all cohabiting adults in 2016. One reason could be the adult children’s rejection to their older parent’s marriage, especially if the relationship formed soon after the death of the other parent. Approximately 23% of cohabiters over age 65 are widowed.
However, as with many things in life, what seems simple — living together — is often quite complex. Unmarried couples, of all sexual orientations, can face a variety of problematic and emotionally difficult issues because estate planning laws are written to favor married couples.
Unmarried partners need to consider the following issues related to estate planning and living together:
Medical incapacity: In the absence of a durable power of attorney for healthcare, non-married individuals may be treated as “legal strangers” and unable to make healthcare decisions on behalf of their partner.
Living arrangements: If the wealthier partner dies or becomes incapacitated with no provision for the other partner to remain in the home (by a will or title) the other partner can be forced from the home by blood kin.
Dying without a will: Intestacy laws (state laws that determine where a deceased’s property goes when there is no will) are not favorable to unmarried partners.
Employer Retirement Plans: Plans like 401k’s, profit sharing, and pension plans, as well as group life insurance plans are governed by a federal law known as ERISA. This law requires that a spouse be the beneficiary of these plans in the event of the employee’s death unless waived by the spouse. No such protection is afforded unmarried partners unless the partner is listed on the Plan’s beneficiary form.
So, your parents have a trust, and you’ve just found out that you are the trustee. Do you thank them or did they reward you with the booby prize? A trustee is held to a high standard of accountability and must act in accordance with an established standard of care as outlined below. To fail in one or more of these – called a breach of fiduciary duty – is to invite litigation and sometimes results in broken family relationships where a family member is also the trustee. Professional trustees, like banks with trust departments, or corporate trustees will be given very little leeway if they fail in any of these duties, but untrained family members or individuals who find themselves in this unenviable position are often not excused for lack of knowledge either.
Duty of loyalty. A trustee has a fundamental duty to administer a trust solely in the interests of the beneficiaries. A trustee must not engage in acts of self‐dealing.
Duty of administration. The trustee must administer the trust in accordance with its terms, purposes, and the interests of the beneficiaries. A trustee must act prudently in the administration of a trust and exercise reasonable care, skill, and caution, as well as properly account for receipts and disbursements between principal and income.
Duty to control and protect trust property. The trustee must take reasonable steps to take control of and protect the trust property.
Duty to keep property separate and maintain adequate records. A trustee must keep trust property separate from the trustee’s property and keep and render clear and accurate records with respect to the administration of the trust.
Duty of impartiality. If a trust has two or more beneficiaries, the trustee must act impartially in investing, managing, and distributing the trust property, giving due regard to the beneficiaries’ respective interests.
Duty to enforce and defend claims. A trustee must take reasonable steps to enforce claims of the trust and to defend claims against the trust.
Duly to inform and report. A trustee must keep qualified trust beneficiaries reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests.
Duty of prudent investment. A trustee who invests and manages trust property has a duty to “invest and manage trust property as a prudent investor would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust.
Much like the position of Executor, the role of Trustee is not to be accepted lightly and can often be a lifetime of responsibility. If you are not comfortable serving in this capacity, discuss this with your parents now so that alternate plans can be made.
Trusts are excellent vehicles for protecting an estate from creditors, transfer taxes, or misbehaving heirs. Their operation may be simple or complex, but it is incumbent upon you to talk to your parents about their trusts, and especially who the parties are if you are in the role of financial caregiver.
A recent New York Times article profiles the lives of women who have no other option than to drop out of the work-force to care for an aging parent, at significant cost to the economy.
The burden of care for aging relatives is reshaping the lives of millions of others. About 15 percent of women and 13 percent of men 25 to 54 years old spend time caring for an older relative, according to the Labor Department. Among those 55 to 64, the share rises to one in five Americans. And 20 percent of these caregivers also have children at home.
According to a study released by the U.S. Census Bureau, more Millennials are living with their parents more than in any other living arrangement, with one in three 18-34-year-olds living at home. Add to this the fact that according to The National Alliance for Caregiving, about 34.2 million Americans have provided unpaid care to an adult age 50 or older in the last 12 months, and you have the classic description of the sandwich generation.
Among the findings from the Census Bureau study:
In the 1970s, 8 in 10 people married by the time they turned 30. Today, not until the age of 45 have 8 in 10 people married.
In 2005, the majority of young adults lived independently in their own household, which was the predominant living arrangement in 35 states. A decade later, by 2015, the number of states where the majority of young people lived independently fell to just six.
More young men are falling to the bottom of the income ladder. In 1975, only 25 percent of men, aged 25 to 34, had incomes of less than $30,000 per year. By 2016, that share rose to 41 percent of young men. (Incomes for both years are in 2015 dollars.)
Between 1975 and 2016, the share of young women who were homemakers fell from 43 percent to 14 percent of all women aged 25 to 34.
And the one that really sticks out to me…
Of young people living in their parents’ home, 1 in 4 are idle, that is they neither go to school nor work. This figure represents about 2.2 million 25- to 34-year-olds.
