Tips of the Trade - Children Are the Enemy

• Publication year: 2017
• Author: By Bruce Givner, Esq.* and Owen Kaye, Esq.*

TIPS OF THE TRADE - CHILDREN ARE THE ENEMY

By Bruce Givner, Esq.* and Owen Kaye, Esq.*

I. INTRODUCTION

Adult children often accompany their parents to our office for an initial meeting. After a few minutes we announce to the parents: "Your children are the enemy." We explain how the children will, as the parents age, tell the parents they are no longer competent. We explain other problems caused by having children involved in the process.

II. THE GOOD STUFF

Children help ensure their parents have a comprehensive estate plan. They encourage parents to engage in ordinary income tax, capital gains tax, estate tax, and asset protection planning.

We appreciate the children's efforts. We want to make them happy, in part, to have a good relationship with the parents. Also, we want the children to hire us to handle (i) the post-mortem administration, and (ii) their own planning.

Now let's explore the dark side.

III. OUTSIDE THE ESTATE PLAN DOCUMENTS

A. Attorney-Client Privilege

If the meeting is about estate planning, maintaining the privilege is not important since the privilege gives way where parties (children) claim through a deceased client.¹ However, if it concerns income tax, capital gains tax, estate tax, or asset protection planning, maintaining the privilege is critical.

Will the children's presence vitiate the privilege? The children may be "present to further the interest of the client in the consultation [and they may be] reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted...." Evid. Code §952.

Consider this before the meeting. It will be awkward to welcome the family and, after 10 minutes, tell the children to wait in your reception room.

B. Engagement Agreement

We include this sentence in our engagement agreement: "We do not represent your children, your grandchildren or their spouses."

C. Undue Influence and Duress

Perhaps the biggest danger children pose is in shaping the estate plan. The "good child" brings Mom to us and explains why Mom is not leaving the estate equally among the children. It seems logical. However, after Mom dies, the other two children ? each of whom received 5% of the estate ? petition the court. We then hear a different story: the "good child" isolated Mom and fed her stories about the others being Nazi sympathizers (actual case).

D. Pushing Parents To Do Too Much Planning

It is nice when children encourage their parents, age 89, worth $40,000,000, to do...