In my practice I come across many situations where some decisions are made and not communicated to people who it may affect. This article will briefly discuss three scenarios that I have come across in my practice which could have been made less difficult if communications were made.
Often I see the following language in Wills: “no provision is made for my nephew Bobby for reasons he well knows.” Very often, the opposite is true. The nephew does not know. It would be better if you communicated that to the nephew. Usually the Testator wants to avoid bad feelings or confrontations. I often find it necessary to videotape the Testator to memorialize the thoughts of the Testator in creating the Will. I often just use my iPhone. That way you have a record of the thinking by the Testator, as well as a view into the mental condition of that Testator. Of course, it would be advisable to make sure that the Testator is capacitated, at least in the attorney’s estimation.
Powers of Attorney
Another problem that exists is that in Powers of Attorney, an alternate agent is chosen, without communicating that to the agent. Things go a lot smoother if the original agent, should he or she not be able to perform their duties, knows that the alternate agent is ready, willing and able to serve. Communicating that to the alternate agent is critical, before problems happen.
Lastly, I often see co-Executors, co-Administrators or co-Trustees acting individually without communicating. Sometimes this happens when the co-Executors, co-Administrators or co-Trustees are angry at each other or are not talking. Also, in these scenarios, one person will “take over” the process. The other co-Executor, co-Administrator or co-Trustee does nothing to prevent this from occurring. It is better to communicate rather than have some very uncomfortable moments, often in Court, when real problems occur. If there is an impasse, my final suggestion would be to try mediation, as opposed to running to the courtroom. Many times in these situations Judges will, certainly in Chester County, require mediation to resolve the dispute. This is a cheaper and more efficient way to resolve issues.
In sum, it is best to communicate at all times, especially before problems occur. Unfortunately, human nature often dictates that the person will do anything to avoid confrontation, only to find out that things only got worse by ignoring the problem.
Communicate! Communicate! Communicate!