In my line of work, I see lots of fighting. No, I don’t have an office ringside at a boxing match, but I often see folks with a family member that has passed away who either didn’t make their wishes known or didn’t put them in writing. Sometimes, the surviving spouses or children of this person will have different ideas about what their loved one would have wanted. Sometimes, they have strong opinions about what they believe they deserve from that person’s estate. Either way, by the time they reach my office, emotions are running high and the gloves have come off.
If I’ve learned one thing, it’s that no family is immune to fighting.
High-risk factors that often bring about probate (called succession in Louisiana) litigation can include sibling rivalry, second marriages without a prenuptial agreement, and dysfunctional family dynamics. Also, a non-standard estate plan that treats children differently, omits a child, maintains an overly detailed trust, or appoints a substandard fiduciary may cause litigation.
If you have a plan in place, assess yours. 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. This estate plan should include:
- Comprehensive protective measures if you become unable to handle your own affairs
- A will or a trust to pass property at death
- Documented evidence of gifts given to family members during your lifetime
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.
Something else I commonly see is litigation over self-prepared estate documents. Handwritten forms and documents from online resources lead to many mistakes you may not foresee and litigating over legally defective documents often far exceeds the cost of hiring an estate planning attorney to prepare them correctly to begin with. Ensure you hire a highly skilled attorney.
Also, 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 financial or medical power of attorney 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 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 an estate planning attorney when appointing your fiduciaries to understand the rules and roles they will fulfill.
When you begin your estate planning process, you may not want to include your beneficiaries. If family members sense someone is attempting to influence the decision-making process, they may claim you were unduly influenced. Questions about whether the plan truly reflects your wishes and who authored the estate plan can also lead to probate litigation.
Another fight-starter is verbal planning. Don’t make verbal promises about inheritances. They are legally unenforceable and can contribute to someone challenging your estate plan. The best strategy is to manage the expectations of your heirs honestly and directly by only making promises you are willing to document legally.
And finally, an incredibly common reason disputes arise: 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.
A solution to all this fighting? Working with a qualified estate planning attorney so that you may mitigate the risks of probate litigation within your family with well-crafted legal documents reflecting your wishes.
The information provided is not intended to be legal or tax advice and does not constitute any attorney/client relationship. You should consult with an attorney for individual advice regarding your own situation.
Ms. Melancon is an attorney with Legacy Estate & Elder Law of Louisiana, LLC with offices in Baton Rouge, New Orleans and Lake Charles, LA. The primary focus of her practice is estate planning, probate, special needs planning, and elder law. For more information or to attend an upcoming estate planning seminar, call her office at (225) 744-0027.