I’m a sibling lawyer. My career started early, as a middle child, and now continues as a Sacramento-based trust and estate litigation attorney. Most of my clients are grappling with sisters or brothers over the care and finances of aging or deceased parents. In Family Feud parlance, my “survey says” that sibling versus sibling is the top category of matchups in California trust and estate disputes.
Will this happen in your family? What leads siblings to litigate? In many of my cases, cracks in family relationships were evident long before anyone filed papers at the courthouse. But I’ve had many clients tell me they were always close to their siblings and “never saw it coming.”
Care of Aging Parents
Many of our parents will need increasing support as they age. According to the Alzheimer’s Association, 32 percent of Americans age 85 and older have Alzheimer’s disease. As the disease progresses, it becomes increasingly difficult for elders to live at home without assistance.
Should Mom and/or Dad remain at home? Who should we hire to provide care and when should the caregivers be present? Should we hire caregivers directly or through a home care agency that can handle employment law issues? How does Mom or Dad feel about moving to an assisted living facility and what options are available? Should Mom or Dad move to be closer to a sibling? Which one?
These are difficult decisions that can spark friction among siblings. From my observation, “parent custody” battles among siblings are a prime driver of the recent increase in conservatorship cases in Sacramento County.
Siblings may seek a “conservatorship of the person” to gain control over Mom/Dad’s health care and living situation. Indeed, if Mom named daughter Sally as agent under a health care directive, son Brad likely will have to get a conservator of the person appointed in order to have the court terminate Sally’s authority over Mom. Brad will need to decide whether to ask the judge for his own appointment as conservator or instead nominate a professional fiduciary.
Asset transfers and estate planning changes by aging parents also lead to inter-sibling conflicts. What if Mom and Dad give away a valuable residence to one of several siblings? Of course, parents have every right to do what they want with their own assets. But what if Mom and Dad have serious mental health issues and may need all their assets to pay for their care as they get older? The siblings who did not receive the gift will have to decide whether to sue to reverse it – not an easy decision emotionally and the litigation route is costly.
By seeking a “conservatorship of the estate,” a child can seek to protect Mom/Dad’s finances by placing control in the hands of a conservator. The court can terminate financial powers of attorney issued to a sibling who has taken advantage of them. If Mom/Dad have a trust, it may be necessary to file a second lawsuit in the probate department, under the California Trust Law, to have the Court appoint a successor trustee who can stop “bad sibling” from continuing to pillage Mom and Dad’s assets.
Competition for Assets After Mom and Dad Are Gone
When Mom and Dad have passed, there may be conflict over funeral arrangements. I have seen disputes over cremation versus whole body burial, whether Mom should be buried next to her last husband or a prior spouse, and what sort of “celebration of life” should occur. Parents out there: you can avoid such disagreements by specifying your own burial arrangements. Put your wishes in writing for all your children to read.
A variety of circumstances drive siblings to sue each other when Mom and Dad are deceased, chief among them –
- Selection of successor trustee. Mom and Dad usually name one of their children to act as executor and successor trustee, and the others may be resentful that they were not picked. Yet choosing a committee of siblings to ask as co-trustees risks gridlock in trust administration.
- Allocation of tangible personal property. Who gets the “stuff” in the family home? Where did Mom’s wedding ring go and who is entitled to it? It’s amazing how often siblings fight over who gets the china even though most folks seldom use formal place settings these days. From firearms to comic book collections, the disputes over tangible personal property can be endless and at times can feel unending.
- Loose ends between parents and children. In many families, Mom and Dad continue to support an adult child. If Johnny signed a promissory note in favor of Mom/Dad two or three decades ago and he now claims it was forgiven, will the other siblings accept Johnny’s statement or want to charge the unpaid principal plus interest against his share? If Johnny was living rent-free in a family property when Mom died, must he now pay rent and if so what is the fair rental value?
- Unequal division of the remainder. Most siblings feel wronged if they are not given an equal share. I recall deposing a woman in her 60s who was convinced she was entitled to an equal share of the family farm because she had woken up early to milk the cows when she was a teenager.
- Conflicts over administration. Administration should be smooth if a trust estate consists of only assets that are easy to liquidate, and the trust instrument calls for immediate distribution of all assets, but the trustee may not move fast enough to please everyone. Very often, trusts contain real estate and illiquid interests in ongoing businesses that are not so easy to distribute. Some beneficiaries may want to receive assets, such as a family cabin, “in kind,” which requires agreement amongst all parties on the allocation and valuation of such assets. While trustees generally are entitled to charge a “reasonable fee” for their services, siblings often quibble over such fees even when relatively modest in amount.
How and When Will It End?
Like a divorce between spouses, a trust and estate dispute between siblings will end when all of Mom and Dad’s property is finally allocated. As much as I’d like to imagine otherwise, an experienced “sibling lawyer” can’t “leap tall buildings in a single bound,” but can advise clients about how disputes are likely to play out and provide strategic guidance. Some cases lend themselves to early resolution through settlement or mediation. Some cases can be resolved favorably by a pre-trial motion. Other sibling slugfests “go the distance” through trial and appeal.