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9. Some Practical Considerations: Working With Families
After the estate planner conducts the initial interviews, describes the range of issues the parents need to consider, and gives them a broad sense of their various options, he or she can introduce the client to the concept of holistic planning and to the family facilitators. The work with the entire family is an addition to the normal estate planning process. It does not replace what the parents’ attorney would normally do, but adds to it. With appropriate confidentiality agreements and releases in place, the estate planner briefs the mediators on information gathered during the initial interviews that may be relevant to the planning process. While estate planners should not play the role of the mediator for the clients’ family members, they may be called upon to offer expert advice and opinions or to educate family members at some of the mediation meetings.³⁶

Mediators and parents discuss the family’s and the parents’ goals prior to the first family meeting.³⁷ In a sense, the mediators’ first task is to understand the style and culture of the family and what makes them different from other families. This step is important because every estate planning process is unique and designed to meet the special needs of a particular family.³⁸ Discussions with the parents help set the tone for the retreat, which is one of the most important factors contributing to the retreat’s success.³⁹ The most important outcome of the pre-retreat discussions with the parents is that the parents themselves are generally in sync about how they would like to dispose of their estate.

Meetings with the parents (usually conducted by phone) include separate discussions with each parent so that each has a meaningful chance to voice concerns. More often than not, one or both parents will reveal something to the mediators that they would not have said in the presence of the other. Having the parents come to a meeting of the minds about what they would like to accomplish is an important preliminary step to take before the retreat and may require a face-to-face meeting. The parents do not necessarily need to agree on everything, but they should not be at odds about essential principles. Neither parent should be adamantly opposed to what the other would like to do, and both should approach the retreat and their children with an open mind.

The parents, their estate planner, and the mediators usually decide together exactly whom to include in the process (e.g., whether children’s spouses or a drug-addicted son will participate). Bringing all the appropriate adult parties into the process helps achieve the best possible result with the greatest buy-in and the least chance of having the final plan be contested. Mediators conduct telephone interviews with all the adult children before the retreat to ensure that the children understand the reasons for the retreat and to answer any questions about the process. With some families, mediators might ask all the adult children to write out some thoughts and reflections about the family (e.g., shared experiences, family values, special needs of family members) and about any special circumstances or family assets (e.g., trusts, vacation properties, or businesses).

The preferred retreat format lasts between two and four days. The concentrated timeframe is often necessary for logistical reasons.⁴⁰ Retreats make it possible for family members to have sufficient time to grasp the complex issues fully, resolve impasses, and make progress. Mediators should maintain tight schedules and manage the meetings, but the schedule should also be flexible and respond to the requirements of the discussions.

Individual meetings before and during the retreat should uncover points of contention, hidden agendas, and information about sibling rivalries and parent-child conflicts. Subsequent meetings with all the family members, or subsets of the family, should clear up misunderstandings and misperceptions, as well as build a greater spirit of collaboration. The purpose of family retreats is not to resolve long-standing, deep-seated family conflicts, but these old conflicts often become less weighty in the course of achieving the family’s estate-related goals.

Families discuss and establish their own goals for their pre-estate planning retreats at the start of their time together. The most common goals vary from family to family, but may include some of the following: the parents leave with a clear sense of what they wish to do with their assets; they have clarity about how they will be cared for under various scenarios; the entire family has a sense of what this family transition means to them individually and collectively; they have a better idea of who they are as a family; they all feel that they have had a opportunity to express their feelings and views; the adult children understand their roles vis-à-vis their parents and the parents’ care for the remainder of the parents’ lives; children have confidence that there will not be surprises after their parents die; and they leave with confidence that, if necessary, they will be able to manage assets, trusts, or businesses collaboratively when the time comes.

During all phases of the planning process, planners and mediators should keep one another fully informed of their contacts with family members and seek one another’s input and advice. After the individual and family meetings, mediators typically circulate a summary of the retreat goals and what actually was achieved to all participating family members for their information and comments. Family members should understand the summary will be shared with the parents’ estate planning attorney. Mediators may meet with the attorney and parents to discuss the implications of their findings for use in constructing the estate plan. The attorney and parents will then resume the conventional estate planning process. When the plan is complete, families may find it useful to seek the mediators’ thoughts and possibly involve them in communicating the results to the heirs.

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When the parents’ attorney or accountant becomes part of these meetings, it is understood that they are functioning as the parents’ expert advisor. Adult children rarely have a problem with their offering professional opinions in this way.

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Because a retreat is often the most practical way to bring the family together for meetings, we will assume that the family’s meetings take the form of a retreat.

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Families vary greatly in their degree of openness. At one extreme are emotionally close families that talk about everything. The members know most of what is going on in one another’s lives. At the other extreme are families that practice secrecy, talk very little, and are oblivious to what happens in each other’s lives. This distance does not mean they do not care about one another; they just have a different way of expressing care and concern. The majority of families fall somewhere between the two extremes in terms of their openness and emotional connection. Importantly, within any family, there may be both closeness and distance between different family members. Knowing these basics about the family will help mediators to establish rapport with individual family members and will help the mediators coach them through the process.

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Personal Communication with Thayer Cheatham Willis (June 11, 2004). Willis is the author of NAVIGATING THE DARK SIDE OF WEALTH: A LIFE GUIDE FOR INHERITORS (2003).

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Occasionally, a family may find that they cannot arrange an extended retreat. In that event, they can arrange several half-day or day-long meetings, but this is usually less desirable than one efficient, intensive retreat. The retreat location should be comfortable and should provide opportunities for family members to escape physically and mentally when they are not in the often emotionally intense meetings.