Talking With Barbara Kate Repa: Wills and Estate Planning

A legal expert talks about why parents should have wills and other end-of-life documents -- and why families fight when they don't.

Twenty years ago, when attorney Barbara Kate Repa moved to the West Coast, she noticed that something was missing in her life: old people. Growing up, Repa had been very close to her grandmother and had always had a "yen for older people," she says, but in San Francisco she only knew people of her own "age and stage."

So Repa joined the Bay Area Funeral Society, a consumer protection group that advocates for better regulations and more reasonable prices in the funeral industry, and that also helps people plan their own funerals and make sure they're carried out the way they want. It was a lively group of seniors -- one of its founders was Robert Truehaft, husband of Jessica Mitford, whose attack on the funeral industry for taking advantage of grieving families, The American Way of Death, was a national best seller.

Repa became president of the society -- and inherited a few hundred grandmothers and grandfathers in the process. "It was just wonderful," she says, "a way to sort of enrich your age bracket."

At around that time, she also began working on WillMaker -- a software program that helps people prepare their own wills, powers of attorney for finances and health care, final arrangements documents, and other end-of-life legal papers -- for Nolo Press. At night, she had Funeral Society events and was president of the Board of Funeral Directors and Embalmers, an oversight board for the funeral industry. "I tell you," Repa laughs, "death is my life."

Repa's father, Frank, died four years ago, and she (along with two siblings) is now a long-distance caregiver to her mother, Vera. Repa spoke to about some of the most frequent legal issues that families -- including her own -- face before and after a parent's death.

How common is it for parents to die without a will, and do family disputes usually follow?

It's a shocking statistic that more than 70 percent of people don't have wills. You just kind of assume people are walking around with those things in their lives. It's a huge, huge issue because there's nothing like a death to shake people up and make them vulnerable and bring out their roughest edges -- and nothing like property to bring out the greed and strangeness in the best of families.

That's why I didn't write my mother's will. I talked to my mom about what it would involve and what to think about, but I thought it was important to have another person actually do it. I didn't want there to be a scintilla of "you've got your finger in the pot" among other family members.

What kinds of things do siblings usually fight over?

It tends to be the things with emotional value. I was just involved in a meeting where there was a fight over a mother's fingernail polish collection. She had these big long talons and was always known for having them painted up in an interesting way, and the daughters were at each other's throats about it. So it's often the emotional stuff and not the "big ticket" items -- not the bank accounts and the things you would expect.

Why don't children talk to their parents about these things?

I think that on the children's side, and also sometimes on the parent's side, there's a superstition around wills and estate-planning documents -- you think that if you have one, you're going to die. For a lot of people it's a matter of facing their own mortality. People also think, "I won't be there to see the mess, so who cares?"

There are a lot of reasons to be que será-ish about it. But for aging parents, preparing the papers is a way to feel that they have some control over the future.

This wasn't something that you realized before your father's death, was it?

No. My dad was the world's most fastidious person -- the kind who had all his hangers hanging the same way, his shoes all organized. He labeled the shelves in the medicine cabinet by various body parts, like "head" and "shoulders."

He had a lockbox in his closet with folders inside. He'd always discreetly leave the room when he brought out the lockbox. We all simply assumed he was very fastidiously keeping track of the deeds to the house, his will -- all of that. When he died, we took it down and what was in there were $20 bills he was putting aside for each of the kids for Christmas. No wills, no nothing.

So he died without a will and it was a huge mess. I was very embarrassed about it. We had to go to court and it took many months and lots of wrangling just to get things like his insurance and stock in my mom's name. If we had had just a couple of conversations about it, all of that could have been avoided.

My parents are very Midwestern, so there's this sense that it's a private matter and you don't pry into things, and my dad was very sort of buttoned-up that way. I also think a lot of kids are hesitant to bring up that conversation because it feels like it makes them look grabby. But my God, my dad wouldn't have wanted what happened to happen.

Looking back, how would you have started those conversations?

My dad would have wanted this stuff to be organized and taken care of, so I think we could have just approached the conversation that way. We should have said something like, "Let's just make sure the i's are dotted and the t's are crossed here. Can we sit down and figure that out so that things happen the way you want them to happen?"

Sometimes parents are afraid to start the process because they think wills are carved in stone and they'll never be able to revisit them. They'll think, "What if I stop talking to my Aunt Sue and she's got all the antiques in the house?"

If your parents are worried that a legal document is irrevocable, you can also broach it as: "Let's just get this down on paper, but we know that it's something you can change, so we'll look it over once in a while." Reinforce that it doesn't have to be forever. It's for today -- however you picture these things now.

Are you having conversations with your mom about her will and other end-of-life documents?

I'm having some. I've said, "Look around the room, Mom. There are some things that are valuable or that you must have some special ideas about. Write down on a piece of paper what you'd like to have happen with those."

She's been really receptive to that, and very hopeful and happy about it. I think that's because a lot of older people are kind of winding up their lives and thinking, "This is what I want to happen, this is my legacy -- I want my son to get this clock because his grandpa built it." It's a way of passing on the family stories that they might not get to attend to otherwise. I've watched her almost bloom from it.

Is your mother just more open to having those conversations than your father was, or is she more open because of what you went through when your father died?

It was definitely that experience of having to go down to the probate court during a very emotional time for her that motivated her. Unfortunately, she kind of had to see that in action to know that she didn't want anyone to go through it again. It was just simple stuff like changing names on accounts, but it's amazing how much red tape you have to go through, how many forms you have to file.

When should people write a will?

It's probably more important once you have kids. It's not so important for a young married couple because probably the state laws will kick in and what will happen is exactly what you want to happen. But I think anybody of any age should think about advance medical directives because you just never know what may happen, so it's always good to have those things in order.

What other problems arise around wills?

Sometimes people think they've made wills and they haven't. When I first started to talk to my mom about a will and writing down what she would want each of the kids to get, she did that on a little lined piece of paper and she thought she had made her will. So I think there's this misconception that once you've thought about it, once you've written something down, that's it -- which is not always the case.

What happens if parents do write their wishes down on a slip of paper and another family member contests them after they die?

There is something called a holographic will, where you can have a will on a cocktail napkin, as long as it's signed and a few specific legalities are taken care of. But you can imagine that a real legal document gets a little different treatment in court than a cocktail napkin. That's the reason why it's so good to get a more formally drawn will.

How can parents, or their children, avoid the problems that so often accompany documents like wills and advance health care directives?

With healthcare issues, sometimes the oldest child will step in and say, "I know what kind of medical care Mom and Dad should get. I'm the oldest and I should get to decide." And that person may not be the most sensitive or know the parents the best.

So I think it's important to smooth over those potential hurt feelings by having these conversations, saying things out loud. For example, a parent might say, "I'm going to pick Mary to be my healthcare agent, but John gets to be the administrator of the estate." Make people feel involved; make them feel like you've given it some thought.

Above all, the kids need to respect their parents' prerogatives. It's their stuff, it's their healthcare -- you can't just ride in on a white horse and say, "I'm going to fix this for you" or "I know what you should do. I know how to keep you safe." There's a respectfulness that should come on both ends of the conversation, but just to have those hard conversations is the first big step.

Spreading the responsibilities among the children seems like a good idea.

I think so. The parent needs to pay attention to their personalities. If Mary's not good with math, you don't want her involved in something that has to do with finances; but maybe she's the sensitive child in the family, maybe she's smarter about medical care and more tuned in to that kind of thing. So pay attention to the abilities of the people and how that would work. I think that's something that would speak loudly even to kids who might be prone to feud over things.

But don't those kinds of characterizations from the parent also end up sometimes causing resentments among siblings?

Maybe, but it's wormier when it happens anyway, and the children are left fighting over things or there's nothing in writing. Then it's a dead-on battle instead of having things happen the way the parent wanted them.

We often hear about confusion concerning "do not resuscitate" orders and whether they'll be enforced.

I've heard about more and more about people getting bracelets or even tattoos to indicate that they've signed a DNR order. As baby boomers age -- and we're kind of a feisty group -- I think we'll also get more strong, organized controls about how these things get listed and found out about.

There are some websites where there are repositories for advance directives and living wills and such, but so far that's not working very well because people don't tend to go to the computer first to look for that information. Eventually there may be more of a state or national repository that is the place where people look.

That makes sense because it's a little hit-or-miss now. Kids are looking around, rummaging through the kitchen drawers and cupboards and what not, trying to find those documents. Parents need to be very organized about getting them and making sure people know where to find them.

Do most parents want to write their will with their children present or not?

People are different. There was a rage ten years or so ago about living trusts. They were held out to be a kind of panacea because they worked just like a will but you didn't have to go through probate. And people were embracing them because they could keep them private. When you have a will, you have to file it in probate court, and technically anybody could get to see it.

So privacy can be a big concern. I think people who feel more private and don't want their estate plans aired out would go the trust route. For some reason, I hear that a lot with baby boomers, too: "I don't want people knowing my business, I don't want the kids to know in advance what's going to happen."

What are the most common questions you get from readers?

There are a lot of questions about powers of attorney and what they mean. People sometimes think that when they're named in a POA document -- either for healthcare or finances -- that allows them to take over the person's whole life.

There are a lot of questions from parents who say, "I want to sign this document, but I don't want Tom taking my checkbook away from me." But parents can customize POAs to work for them. For example, you can specify, "This isn't going to go into effect until I'm incapacitated, until I really need this kind of help." People think that once they sign something, they've signed their lives and their rights away, but you can tailor these documents to fit your needs.

There's also a common misconception among people who are given POA for a parent or other loved one that it carries on forever -- it means that person is the administrator of the estate, the trust person, and so on. And that's just not so. Once the person you have power of attorney for is gone, the document's power is gone. It dies with the person.

Tell me about WillMaker.

At first it was just a software program that allowed people to make their own wills. Then we added components so that now you can make health care directives, powers of attorney, final-arrangements documents, and so on. So it's pretty comprehensive.

The hard work of preparing these documents is really something you do in your own soul. There's not a lot of legal thinking that comes into estate-planning documents. The work comes from the people who own the property or have the wishes.

There are a lot of other good self-help products, too. You just need to be very careful that they're state-specific. Be leery of forms that say they're good in all 50 states, because there really is no such thing. States have different little nuances. I think if you've got a product that's backed by a team of lawyers making sure that they're state-specific and updated fairly regularly, you're on good, safe ground with them.

When you got involved with the Bay Area Funeral Society, what kinds of issues was it protesting against?

Mostly the high cost of dying and the fact that grieving family members are such a vulnerable bunch of consumers. When you walk into a funeral home, the stereotypes of the unscrupulous funeral director that you see and hear are often true. You get taken into a room and they say, "Did you love your mother? Do you want to buy her just this little pine box or this beautiful casket?" A lot of that goes on behind closed doors.

The Funeral Society also helps members set out their own funeral plans in advance. The Society has arrangements with different mortuaries, so you can say, "I'm just going to be cremated and that's it. I don't want a fancy casket."

Mostly the Society caters to people who want to have simple, low-cost funerals or burials, but not necessarily. It's a matter of making sure you get what you want after you're gone. The funeral society is the watchdog to make sure you get only those services and aren't charged for more as well, so it's kind of a way to keep it all honest.

Don't people put that kind of information in their wills?

A lot of people think that's where you would put it, but very often wills aren't found until a long time after you're six feet under. People keep them in strange places or in safe-deposit boxes, and their family members often can't get to them until long after that person is dead and buried, or cremated. A will is a singularly bad place to keep those kinds of wishes.

Once people in the Funeral Society had dealt with their own personal issue, did they still say involved?

They did. We had very lively -- lively for a death kind of society -- annual meetings. One year we had Jessica Mitford speak -- she was such a wonderful, tough old bird. Another year there was a guy who designed urns for people's cremains, and they were robots, so you could program them to say anything you wanted. For example, a henpecked guy might program his urn to say, "I told you I was sick. I told you I was sick."

How did you get interested in this area of the law?

I got interested in it back in college because our generation was all about sex, drugs, and rock 'n' roll, but death was still a taboo topic. Just about then, the first classes on death and dying began and Jessica Mitford's books were coming out, so people were starting to pay attention to the subject. And that was around the time my grandma died, so for me it was a way of reckoning with all of that.

Were you with your grandmother when she died?

I was, and with my dad too.

This is such an age-defying society, many people are put off by thinking about death and dying. But I also think it's kind of a magical time when somebody is dying. If you're in those rooms, you know that it's a big place to be and it's something that stays with you a good long time, for better and for worse. One of the biggest moments in life is your death.



12 months, said...

I had a lot of trouble enforcing my father's original, notarized Power of Attorney when the Bank of America refused to honor it while Dad was in the hospital in a coma. Now that he has passed away, the bank has refused to work with me regarding Estate administration activities. I am still seething that the bank refused to honor my father's last living wishes of gifting his grandchildren each $14,000 checks while he was alive, even after we had 2 doctors, an attorney and a notary declare him mentally incompetent at the 11th hour. Now that he has passed away, the bank refuses to admit they did anything wrong and my father's grandchildren are out $14,000 each. Is there any legal recourse here?

about 7 years, said...

This should be required reading for getting old. We appear to me about the same age. My family never talked of death even when Pop was dying of lung cancer. It was quite a mess that was left behind by a really hard working guy. I sort of have the opposite problem. With my wife diagnosed with dementia I saw an attorney and made plans. Will, a document that addresses what to do in a medical dilemma, and a legal guardianship for my wife. She made sure the will was filed properly. The idea of the guardianship is to stop or at least slow down my wife from signing any documents before our sons can arrive from the mainland. I fly small aircraft for a living and am aware of the risks that involves. If something happens to me she would be alone for at least 24 hours before they could arrive. One seemingly insurmountable problem is getting my two sons on the access list to get into our bank deposit box. We live thousands of miles from them and have no family to watch for her. I am sure the vultures will drop from the sky to take care of her 'til help arrived. The boys were sent forms from the bank but seem really slow to complete them. Finally one did and the other agreed to recently, they were sent 6 months ago. The bank will not let them in to the box with her and there is no way she could begin to understand what to do. The items you mentioned will be in the box. House warranty deed, will, details of the vehicles and life insurance policies, stock and retirement accounts. Also details of her medical coverage since I am a military retiree. Also a few hundred dollars cash. Is there any other items you might recommend be in the box? Stumper in Paradise