There are many family circumstances that can increase the risk of probate litigation when someone passes. They all come down to basically the same fight: families disagreeing on how to handle the estate of a loved one who dies. High-risk factors that often bring about probate litigation can include sibling rivalry, a large estate, second marriages with no prenuptial agreement, a dysfunctional family, and a non-standard (or non-existent) estate plan. A non-standard estate plan often treats children differently, omits a child due to various reasons, maintains an overly detailed or complex trust, gifts to mistresses, or appoints an arguably substandard fiduciary.
Take these risks into account when speaking with your family. Blended families are very common these days, and implementing a comprehensive estate plan with protective measures in the event of your incapacitation or death will reduce the risk of probate litigation. Take the time now to meet with an estate planning attorney to work through potential issues and have an honest evaluation of the likelihood of interpersonal family issues that can lead to terrible family consequences after your death.
What is Probate Litigation?
Probate litigation refers to the legal process of disputing part of or the entire contents of a Last Will and Testament, disputing a trust, or disputing how assets are distributed after someone’s death. Probate litigation often happens with estates with self-prepared estate documents, including handwritten and online forms with mistakes that a layperson cannot foresee. The money that it takes litigating defectively drafted documents usually far exceeds the money needed to hire an estate planning attorney to prepare your documents correctly.
How to Reduce the Chance of Probate Litigation?
Reducing the chance of probate litigation means you need to be objectively realistic about your family dynamics, which is often difficult for parents. We like to see the best parts of our children, but acknowledging sibling rivalry, irresponsibility, drug or mental health problems, and identifying hostilities in blended family situations is essential to avoid probate litigation in the end. Further, selecting one adult child over another to act as a fiduciary or medical power of attorney can also cause conflict and mistrust among siblings. To avoid future hostility, you can choose to hire a neutral third party or hire a professional fiduciary to administer your estate. Or, you can choose to communicate your wishes clearly while you’re still alive and well.
Fiduciaries exist in many forms, such as patient advocates, guardians and personal representatives of an estate, and trustees. These individuals must make important legal, medical, or financial decisions on your behalf. A layperson who makes these decisions may unintentionally violate their fiduciary duties from a legal perspective, often leading to litigation. It is best to consult your estate planning attorney when appointing your fiduciaries so they understand the rules and role they will fulfill.
How an Attorney Can Help You Plan to Avoid or Navigate Probate
When you begin your estate planning process, our attorneys can guide you on the best course of action for your unique circumstance. Questions about whether the plan truly reflects the decedent’s wishes and who authored the estate plan can lead to probate litigation. This is why we want to start your estate planning process early, so it clearly shows your wishes down the line.
If you are getting your estate planning together as an elderly adult, you may want to consider having a medical evaluation if you have concerns about a challenge to your estate plan. Proactively identifying yourself through a doctor’s examination as being of sound mind and body ahead of your estate planning sends a message that you can make these decisions and you have mental capacity. Along the same lines, do not make verbal promises about inheritance you will not keep. Verbal promises are not legally enforceable and can lead to someone challenging your estate plan if they believe they were promised something that you never intended to give them. The best strategy is to manage the expectations of your inheritors honestly and directly by only making promises you are willing to document legally.
If you keep your estate planning documents safely stored and updated after major life events (such as marriage, kids, new house, etc.), knowing they are accurate and updated will reduce the likelihood of probate litigation. Some probate disputes arise because estate planning documents reflect outdated or inaccurate information. Life changes that include births, marriages, divorces, deaths, and changes of your intentions may all affect your estate plan wishes. Your estate planning attorney can help you mitigate the risks of probate litigation within your family system, but it will require regular updates to your estate plan. With well-crafted legal documents reflecting your wishes, you can reduce your risk of probate litigation. I you are looking to create or update your estate plan in Nevada, call the estate planning attorneys of Michaelson Law to schedule a consultation today.