Reducing the Risk of a Family Fight in Probate Court – Law Office of Sean D. Ethington

Many family circumstances can increase the risk of probate litigation. High-risk factors that often bring about litigation can include sibling rivalry, second marriages without proper estate planning documentation, and dysfunctional family dynamics. Also, a non-standard estate plan may treat children differently, omit a child, maintain an overly detailed trust, or appoint a substandard fiduciary.
There are two fundamental reasons for probate litigation:
1. Disputes about how to handle an incapacitated family member; and
2. Disagreements regarding the dissolution of the estate after death.
Risk Assessment
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 include:
• Comprehensive protective measures if you become unable to handle your own affairs;
• Simple transfers of real estate upon your passing;
• Documented evidence of gifts given to family members during your lifetime; and
• Early document drafting with your estate planning attorney and an honest evaluation of the likelihood of interpersonal family issues will mitigate the risk of costly litigation that can damage relationships.
Defective Estate Planning Documents
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 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 financial or medical power of attorney can cause conflict and mistrust among siblings. You may consider selecting a trusted but neutral third party to administer your estate.
Undue Influence
When you begin your estate planning process, it’s best not to include your beneficiaries in the drafting of the documents. Undue influence can become a legal issue if family members sense someone is attempting to influence the decision making process. Questions about whether the plan truly reflects your wishes and who authored the estate plan can obviously lead future litigation.
Consider having a medical evaluation if you have concerns about a challenge to your estate plan. A doctor’s examination confirms you are of sound mind when creating your plan and that you can make informed decisions.Verbal Agreements
Don’t make verbal promises about inheritances. They are often unenforceable and can contribute to someone challenging your estate plan. The best strategy is to manage the expectations of your beneficiaries honestly and directly by only making promises you are willing to document legally.
Legal Updates and Reviews
Some probate 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. Routine review of your estate planning documents will reduce the likelihood of outdated plans.
A qualified estate planning attorney can help reduce the risks of future litigation within your family with well crafted legal documents reflecting your wishes.
For more information please contact the Law Office of Sean D. Ethington at (661)295-4604 or visit our website at www.ElderLawSite.com.