How To Avoid Litigation Over Your Estate?
Doing what you can to prevent fights over your property
on December 2, 2022
Updated on January 24, 2023
“Estate planning is (simply put) committing to writing how you want to have your property distributed after you die,” says Missouri estate litigation lawyer Robert Will.
“It’s a way to speak to your desire to provide for your family, friends, and any charities in a way that honors your desires. It’s your property, and you’re entitled to dispose of it as you see fit.”
Your estate includes all the property you own, including:
- Real estate
- Tangible personal property (cars, clothing, books, jewelry, etc.)
- Financial assets
- Digital assets, and other intangible personal property
Without a will, confusion and disputes over how your property should be distributed can easily arise among family members. Unfortunately, conflicts can also occur even if you have a will in place.
The death of a family member is already a difficult time. If there are any longstanding family tensions or sibling rivalries, the stress of a loved one’s death can be the spark that ignites family disputes.
The last thing you want to happen to your estate is for loved ones to end up in a fight in probate court. To avoid the turmoil and costs of estate litigation, the best thing you can do is prepare a comprehensive estate plan. Ideally, this is done in consultation with an experienced estate planning attorney.
This article will explain some of the main things you can do to protect your estate from litigation and help ensure the probate process is smooth.
Create a Valid Will
One of the most important things you can do to avoid estate litigation is to ensure your will is drafted correctly. “If the forms are defective, they may end up not being enforceable,” says Will.
Technical defects in estate planning documents are one of the grounds for will contests. If a family member who feels unfairly treated can find a legal deficiency in the will, they can challenge the will in probate court and possibly have a judge declare it invalid.
While the requirements for a valid will vary by state, wills generally must have the following:
- In most states, the will must be in writing
- The person who creates the will (called the “testator”) should explicitly state that the document contains their final wishes
- The testator must sign and date the will in the presence of witnesses
To ensure the proper execution of your estate planning documents, speak with an experienced estate planning lawyer. A lawyer can draft a will that meets your state’s requirements and is legally enforceable. Getting a will properly drafted can save a great deal of time and money in probate.
Testamentary Capacity and Undue Influence
In addition to correctly drafting a will, states require that the testator was of sound mind when they created the will.
The sound mind requirement is also called “testamentary capacity.” Essentially, it requires that the testator was sufficiently aware of creating a will and what the will says.
Will explains that adult testators are often presumed by law to have testamentary capacity. When this is the case, the burden of proving that a testator lacked testamentary capacity is on the person challenging a will, and it’s often very difficult to challenge a will on this issue. Notably, however, in some states, the person who is defending the will must put on at least some showing that the person had sufficient legal capacity to do so, after which the challenger must provide proof that the testator lacked such capacity. The level of evidence to prevail on a will challenge also varies from state to state.
To avoid challenges based on lack of capacity, make sure you choose witnesses who can attest to your sound mind when you sign the will. Specifically, witnesses should be able to testify that you understood what you were doing in creating a will, you understood what the will said, and you understood the consequences of the will.
It can also be wise to meet with your physician before signing a will in order to have their testimony and perhaps a letter or other writing in which they attest to your capacity.
Another issue to avoid is any undue influence in creating a will. Undue influence means someone else controlled or forced someone else to make a will.
For example, undue influence often arises when a caretaker or family member coerces a testator to leave everything to them.
You want to avoid undue influence and the appearance of it. To do this, consider the following:
- Have clear and open communication with your beneficiaries about what you intend to do
- Meet with your lawyer privately, without the influence of others
- Don’t make sudden changes to a will without consulting with your lawyer
Appoint a Trusted Personal Representative
A personal representative is an individual you appoint in your will to oversee your estate administration when you die.
Depending on your state, the personal representative may be called an executor. This individual will oversee the following:
- Collecting your assets
- Filing your will with the local probate court
- Representing and guiding your estate through the probate process
- Distributing assets to your beneficiaries at the end of the probate process
The personal representative plays a crucial role in your estate plan. You want to choose someone who is trusted and competent to carry out the task.
The right person for the job could be one of your adult children. However, people often appoint one of their children out of convenience, when appointing a non-family member with more experience or competence in administration would be better.
So, it’s worth thinking carefully about who would be best for this role. An estate planning lawyer can help you think through options.
Have a Power of Attorney
A power of attorney is an individual you appoint with the legal authority to make decisions on your behalf if you become incapacitated.
There are two main types of power of attorney:
- A healthcare power of attorney is authorized to make end-of-life medical decisions on your behalf
- A financial power of attorney is authorized to make financial decisions on your behalf
A power of attorney only plays a role while you’re still alive. Their authority ceases when you die. Having a power of attorney can avoid major family disputes over healthcare and financial decisions if they come up. As the requirements for [power of attorneys] vary by state, it is important to have competent counsel to draft and amend such instruments.
Accounts with Beneficiary Designations
“There are ways of distributing your property without using a will or a trust,” says Will.
“You can distribute property by a beneficiary or transfer-on-death deed in most states. Likewise, bank accounts and other tangible items can be paid or transferred on death,” he says.
“If the account or asset in question is subject to being transferred that way, they’re called non-probate transfers” since they avoid the probate process, says Will.
Payable-on-death accounts include bank accounts, life insurance policies, and retirement plans. Transfer-on-death accounts include stocks and bonds.
By avoiding probate entirely, non-probate transfers can help prevent disputes in court. However, there is one big catch: you want to make sure your beneficiary designations on accounts match what you say in your will.
If beneficiary designations are inconsistent with what you say in a will, it can lead to serious disputes. For example, if the designation on your bank account says to leave the account to your oldest daughter, but the will says to leave the account to your youngest son, that can create problems in probate.
Speak with a lawyer to ensure that your accounts and the provisions in your won’t clash.
Finally, “There is one device that some planners use to minimize the possibility of a will or trust contest.” says Will. “It iscalled a no-contest clause.”
This tool is used “in instances where you are pretty sure that one or more persons might be unhappy with what you’re giving them.” To head off their challenge, “you have a clause in the will or trust that says if you contest this, you get nothing.”
“Most states recognize the enforceability of no-contest clauses, though enforceability does vary from state to state,” says Will. “There are a couple of states that don’t allow them at all, and many that say if you have probable cause to contest the will or trust, they are not enforceable, even if the contest is ultimately unsuccessful.”
“And there are some states—Missouri is one of them—that broadly enforce no-contest clauses as a means to allowing the testator to express their intent,” says Will. “With a no-contest clause in the latter group of states, if you’re going to challenge a will or trust, you better be sure you’re going to win, or you get nothing,” says Will. Conversely, as testator, you need to leave the person you believe will contest enough of an inheritance such that they are risking a significant amount of money or assets by challenging the will or trust.
“If you have a no-contest clause but cut the person out completely, the person has nothing to lose by contesting. You have to give them something to lose in order for a no-contest clause to be effective” as an incentive not to challenge a will, he adds.
Questions for an Estate Litigation Attorney
A comprehensive estate plan not only directs what happens to your estate after you die. It can also address end-of-life issues, such as the type of medical care you want to receive if you become incapable of making decisions.
In addition to a will and the documents discussed above, an estate plan can also include the following:
- A living trust
- A living will
Of course, everyone’s situation is different, and everyone’s estate plan will be different. The important thing is to have a plan that meets your needs. Consider speaking with an estate planning lawyer to figure out the best estate plan for your situation.
Most estate planning lawyers provide free consultations for potential clients, letting you get legal advice about your estate without initial costs.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- How do I avoid litigation over my estate?
- How do I take my assets out of probate?
- Are no-contest clauses enforceable in my state?
- What should I consider in naming a personal representative?
Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship.
Look for a lawyer who specializes in wills in the Super Lawyers directory for your estate planning needs. If you are an executor or other party needing help with probate litigation, look for an estate litigation lawyer.