Many family circumstances can increase the risk of a family fight in probate court.
High-risk factors that often bring about probate and estate litigation can include sibling rivalry, second marriages without a prenuptial agreement, and dysfunctional family dynamics. Also, a non-standard estate plan may treat children differently, omit a child, fail to include appropriate trusts, or appoint a substandard fiduciary.
There are two fundamental reasons for estate litigation:
- Disputes about how to handle an incapacitated family member
- Disagreements regarding the administration of the estate after death
Risk Assessment of a Family Fight
Take common risks into account and have an open dialogue with your family about your estate plan and intentions should you become incapacitated or pass away. Your estate plan should also include comprehensive protective measures if you become unable to handle your own affairs and documented evidence of gifts given to family members during your lifetime.
Early document drafting with your estate planning and probate attorney and an honest evaluation of the likelihood of interpersonal family issues will mitigate the risk of costly probate litigation that can damage relationships.
Defective Estate Planning Documents
Probate and estate litigation often involves estates with self-prepared estate documents. Handwritten forms and documents from online resources lead to many mistakes you may not foresee.
Litigating over legally defective documents often far exceeds the cost of hiring an estate planning attorney to prepare them correctly.
Fiduciary Roles in Estate Planning
Be hyper-realistic about your family dynamics. This can often prove difficult for a parent since it means owning up to sibling rivalry and identifying hostilities in blended family situations. Selecting one adult child over another to act as a power of attorney or health care proxy can cause conflict and mistrust among siblings. You may consider selecting a trusted but neutral third party or professional fiduciary to administer your estate.
Fiduciaries can be patient advocates, guardians, trustees, and executors of an estate. These individuals must make important legal, medical, or financial decisions for the benefit of others. Family members making these decisions may unintentionally violate their fiduciary duties, leading to litigation. It is best to consult your estate planning attorney when appointing your fiduciaries to understand the rules and role they will fulfill.
Undue Influence
When you begin your estate planning process, it’s best not to include your beneficiaries. Undue influence can become a legal issue if family members sense someone is attempting to inappropriately influence the decision-making process. Undue influence can come about if a family member is seen driving you to the attorney’s office and attending your estate planning meetings. Questions about whether the plan truly reflects your wishes and who authored the estate plan can lead to probate litigation.
Consider having a medical evaluation if you have concerns about a challenge to your estate plan. A doctor’s examination can confirm you are of sound mind and body when creating your plan and that you can make informed decisions.
Verbal Agreements
Don’t make verbal promises about inheritances. They are usually legally unenforceable and can contribute to someone challenging your estate plan. The best strategy is to manage the expectations of your inheritors honestly and directly by only making promises you are willing to document legally.
Legal Updates and Reviews
Some probate court disputes arise because estate planning documents reflect outdated or inaccurate information. Life changes that include births, marriages, divorces, deaths, and changes in your intentions may all affect your estate plan wishes. Keeping your relevant legal documents safely stored and knowing they are accurate and routinely undergoing review will reduce the likelihood of probate litigation.
The estate planning attorneys at Kurre Schneps LLP can help you mitigate the risks of a family fight in probate court with well-crafted legal documents reflecting your wishes. Contact us for a consultation.
