Whether anticipated or not, the death of a loved one is both an ending and a beginning. This article concerns the latter and discusses a set of risks often misunderstood by families and their advisors as they navigate the dual realities death sets in motion around estate settlement and grieving. This cluster of risks is essentially about specific relational dangers that can have damaging effects on family life and set the stage for downstream degradation of wealth through litigation. While this article is neither a treatise on estate settlement procedures nor a full articulation of grief process research, it highlights a key set of issues that families and their advisors should be alert to when a loved one dies. Signs that relational risks are heightening during the settlement process don’t require an expert to see, but do require a willingness to consider and give legitimacy to the dual nature of what’s going on: a sequential and organized process tied to calendar time and an often elliptical, disorganized and complicated process of grieving, unfolding in nonlinear and potentially disruptive sequences. The key risk of this asynchronous process is that care and attention isn’t paid to both sides.
Estate Settlement Process
At a high level, the estate settlement process draws on the administrative and executional skill of the firm running it. Some combination of grace, tact and attention to detail enables management of the typical steps and timeline of estate settlement. Estatesettlement.com provides the essence of the month-by-month sequence, from Month 1 (read will) through Month 5 (prepare federal estate tax return Form 706) and Month 9 (distribute assets to beneficiaries and close estate).1 This process requires an expert choreography of attorney, accountant, personal representative or executor, banks, brokerages, title holders of all sorts and the beneficiary group, all reflective of the need for thoughtful assembly and disassembly of a virtual, collaborative team—which is no small feat.2
It also has a relative urgency attached to it. The nine month timeline set in motion by a death can have hundreds of line items that need tracking down in an estate of any complexity, and the penalties for missing tax payments and filings compound rapidly. This means that the clock is ticking on a process that has an already relatively high malpractice risk.
Death is both a singular anticipation and universal part of what defines us as the one species whose members live against the foreshadowing of this inevitability. We will each die in a singular way, yet we’re caught collectively in what German existential philosopher Martin Heidegger called a “constant tranquilization about death.”3 Language makes us unique among the species as historical beings, and a primary lesson of this history is that our inevitable future is death. We can’t deny this, but expend massive energy trying.
One doesn’t need to be familiar with Heidegger to understand that estate settlement, like our existential orientation to death, is about mechanizing the distribution of assets for the living. Herein lies an important challenge. In the painful opening dialogue between Sarah and her sister, we see the seeds of the coming conundrum. To settle the estate, someone from the family needs to take the role of organizer, in an unofficial role or official capacity as executor or personal representative. From the minute time of death is called, the person is gone, and the estate starts its own trajectory.
The runway toward this moment may well have been laid long ago, often with the decedent’s appointment of family representatives and/or the prior rehearsal of this eventuality; a few families will even go so far as to run what business transitional consultant Dr. Bonnie Brown Hartley calls “fire drills,”4 which are designed to ready a family for the these events and strengthen their ability to navigate them.
Beyond planning and rehearsing is the event itself and its palpable, singular reality. When a loved one is actually gone, the grieving process marches on. It takes its participants with it. They don’t choose it; rather some mix of predisposition combines with the lack of precedent of this particular death and its circumstances and carries participants along. Only in some marginal way do people choose how they’re going to grieve, but the idea that people are choosing their way along has next to no use in helping families process
Instrumental vs. Intuitive Griever
There’s ample literature about grief, whether articulated in fiction or by the social sciences. It’s a difficult body of work to summarize and beyond the scope of this article. For our purposes, however, there’s a very useful heuristic that can help both families and their advisors make sense of what may be going on and why the months after a loss contain the risks they do for the family. This is simply to understand two types of grievers: “instrumental” and “intuitive.”
The instrumental griever is someone whose process is driven by action and cognition. It’s the person who gets busy and gets organized. If you ask an instrumental griever how he experiences grief, he’ll describe it in intellectual and/or physical ways:5
“I just kept thinking about the person.”
“I kept running over it in my mind.”
“I felt I was kicked in the stomach.”
“I felt somebody punch me.”
When you ask an instrumental griever how he expresses his grief, he may not initially understand the question, and will respond as such:
“I guess I didn’t express it much.”
“I talked about the person a lot.”
“I was active in setting up a scholarship fund in his name.”
Emotion is present, but not overt, in an instrumental griever. It’s this person who will attract the estate administrator’s attention, because the instrumental griever will seem to be the one who’s most functional and available for work. A task orientation will be in place and not have to be forced. If everyone grieved this way, there would be little risk to family relations through the estate settlement process.
Of course, that would be too simple and, for better or worse, excludes the other half of the major approaches to grieving, known as the intuitive griever. At the polar extreme, this person may simply appear broken down. When you ask these grievers about the experience of grief, they’ll describe it to you as waves of emotion and not always in neat categories of hurt or pain or anger. When you ask how they expressed their grief, they’ll often say:
“I cried on and on.”
Often, they’ll be hard pressed to get up and get going. An intuitive griever may make use of counseling, therapy or support groups, while instrumental grievers are less likely to use these means or feel they even have the bandwidth to pursue such forums.
Most people experience some of each of these two ways of processing grief, particularly when viewed individually, but will tilt in a certain direction. Style is like this—it doesn’t tell you what you’ll do in every instance, but it says where you’ll lean, particularly when you’re anxious, and anxiety is one of the least understood and addressed components of grieving in our culture.
Colliding Styles and Relational Risk
Things get complicated when these two styles of grieving exacerbate existing role challenges in the family. Taking the simple construct of sibling rivalry as an overlay might aggravate the situation when one sibling is an intuitive griever and the other is an instrumental griever. The estate settlement process will play to the instrumental griever, the one whose style is to be organized and task-focused. The intuitive griever may start to feel railroaded. He may miss meetings because he can’t get out of bed. This can inflame old feelings of disenfranchisement and sow seeds of resentment. Meanwhile, for the instrumental griever, it may be the reverse; he may feel that he’s the only one being responsible to the family. He may feel an extra burden, and that burden may already have momentum based on how the siblings lined up against the caregiving of the parent while he was alive and deteriorating.
One of the cornerstones of risk is the development or aggravation of existing empathic failure. Simply put, by not understanding the grief drivers for each participant, each is left to attribute motives (when there may not be any) to the other and may misunderstand what’s going on. All of this takes place at a highly sensitive moment to the family, a “moment” that can last months or years.
The opportunity for mistrust is now amplified. The intuitive griever sees the instrumental griever as driving the settlement process, as in collusion with the attorney or as pursuing a (pre-existing?) Machiavellian play for favor and control. The instrumental griever may be developing resentments that papers aren’t signed in time, meetings aren’t attended and that his sibling is simply wallowing in grief rather than moving on.
The instrumental griever also has a number of cultural and societal processes on his side. We’re a get-it-done culture. Had a bad experience? Get over it and do it fast. The median corporate allowance for grieving in the United States is two days, ostensibly one to take care of the body and one to go to the funeral. One is expected to get back to work and act as if nothing has happened, something that an instrumental griever may unconsciously seek, but is extremely destructive to the intuitive griever.
The primary pragmatic challenge is the potential evolution of empathic failure in the family and the breaches of trust that may ensue. The shame is that this all may be the result of basic misunderstandings by both the family and its advisors. “Sibling Rivalry,” p. 22, shows how a difference in the styles of grieving increases the risk of family discord.
One California family, whose father owned a legal services business, lived through relational cut-offs and litigation that could be easily tracked back to empathic failures of the three sibling beneficiaries to 1/3 shares of the business when the father died. One brother had grown distant from the father over time, was an instrumental griever and mostly didn’t want any part of the business. Another brother, the youngest, was also an instrumental griever and began pressing the eldest sister—an intuitive griever with deep ties to her father and by far the best candidate to manage the business going forward—into letting him buy her shares and those of the disinterested brother. Her grieving process left her vulnerable to this pressure. For her to stay on with the business was nearly unthinkable at the time, and her pervasive sense of loss rendered her less acute in making decisions about the business and her stake in it. The brother who wanted the business was able to engineer a transaction, subsequently, at a deep discount to earlier valuations, which the sister came to see as a sinister and exploitative plot on his part, as her grief began to evolve and her life came back into more familiar focus. Today, the siblings aren’t speaking to each other and the business is being run into the ground by a less capable heir.
What to Do
The advisors and family participants in the estate settlement process make up a system that has many moving parts and opportunities for successful or bungled resolution. As in the behavior of any system, one needs to hope for the best, but plan for the worst. In the worst case, truly Machiavellian motives are in play, and some of what’s recommended below will only help at the margins. However, experience and research suggest that most families and their advisors are doing their best to manage through a typical transition. The four recommendations that follow start from a premise that there will be normal differences in how family members navigate the estate settlement process and that there are a few things to do to inoculate the family along the way to the relational risks that can arise naturally:
1. Model empathy and respect. Let the family know that you understand variance in the way family members process grief and that the approach to estate settlement not only has a timeline, but also will take into account the natural differences each stakeholder brings to the process. Take opportunities to show empathy—not just feeling sorry for someone, which is sympathy, but making an effort to stand in his shoes.
2. Educate and normalize. Do a little teaching on the two types of grief. You don’t have to be an expert to do this, but call one in if you think it will help. Touch on how some of the differences in grieving may lead to typical relational misunderstandings that can turn into serious problems down the road. Convey that you know this in advance and that the family should be aware of this as the process unfolds. Position this as a typical part of your process for fulfilling your professional duties, not as an afterthought. Let the family know you’ll be checking in with them along the way, and encourage them to do so with one another.
3. Assess. Take stock of how the participants seem to be grieving. This can be more or less formal, but is most powerful when it involves the participants themselves. Describe the two types. Give them a couple of things to read. Collaboratively identify which type they might lean toward, knowing that most people experience some of each.
4. Monitor and intervene. Keep an eye on how people are doing. Make sure the meaning of a lack of attendance in meetings, for example, is well understood, rather than assumed. Slow things down if necessary. Reach out early to those who start to exhibit evidence of disenfranchisement, re-demonstrate empathy for their position and convey a willingness to make sure their interests are being appropriately represented. Intervention can also include a segment of any meeting devoted to simply asking: How’s everyone doing?
In the end, there’s not a simple formula for settling an estate. But, a heightened awareness of the way styles of grieving may affect the process serves as an additional ounce of prevention for downstream problems. A dose of modeling, teaching and action can support the normalization of the process for the family and stop a negative spiral of mutual misunderstanding and empathic failure that can lead to relational collapse and litigious outcomes.
2. Cf. Gregory T. Rogers, G. Scott Budge and Brian Douglass, The Real Work of Collaboration: Are We Kidding Ourselves, eLign, Fall 2010, www.raylign.com/wp-content/uploads/Collaboration%20eLign%20-%20Final.pdf.
3. Martin Heidegger, Being and Time (New York: Harper & Row) at p. 298.
4. Bonnie Brown Hartley, Sudden Death: A Fire Drill for Building Strength and Flexibility in Families (Cambio Press 2006).
5. Read in full this dialogue between Kenneth Doka and Victor Yalom at