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Publications | September 22, 2020
4 minute read

10 Ways to Reduce the Risk of Probate Litigation

As a probate litigator, I represent clients in disputes over:

  • Administration of an incapacitated person’s financial and medical affairs.
  • Administration of a decedent’s estate and/or trust.
  • Interpretation of wills and trusts.
  • The validity of legal documents and transactions (e.g., wills, trusts, gifts, deeds).
  • Ownership of joint bank accounts and other assets.

These disputes are usually highly emotional and contentious and are often time-consuming and expensive. Sometimes, disputes are unavoidable; a disinherited child may challenge the parent’s estate plan, no matter how carefully it is prepared. But you can minimize your family’s risk of probate litigation by following the best practices below.

1.  Do Not Draft Your Own Documents

Probate litigation often involves self-prepared estate-planning documents, often handwritten or prepared from online resources, because there are many mistakes that a lay person may make in trying to prepare these documents. The money spent on litigation over defectively-drafted documents will likely dwarf the cost of hiring an attorney to prepare the documents, bringing to mind the old adage “penny wise and pound foolish.”

2.  Hire a Qualified Attorney for Your Documents

The best way to ensure that your wishes are carried out is to have a well-drafted estate plan, prepared by a highly-skilled trust and estate attorney known for drafting superior estate documents. Look for attorneys with meaningful professional recognition by their peers, such as being listed in the Best Lawyers in America or Michigan Super Lawyers, or being elected a Fellow in the American College of Trust and Estate Counsel.

3.  Be Realistic About Your Family Dynamics

Understand that sibling rivalry is a frequent cause of disputes. Perhaps one sibling bitterly resents the fact that another sibling was chosen to administer the estate and therefore believes that anything the “favored” sibling does is wrong. Or the “favored” sibling might use the opportunity to unfairly enrich themselves, at the expense of other siblings. Hostility is also often present in blended family situations, with the decedent’s children from a prior marriage on one side, and the decedent’s second spouse and stepchildren on the other side. In difficult situations, selecting a neutral third party (either a trusted individual or a professional fiduciary) to administer the estate or trust may be prudent.

4.  Consult An Attorney When You Start as a Fiduciary

Fiduciaries, such as patient advocates, trustees, guardians and personal representatives of an estate, are subject to certain legal duties because they are entrusted to make important legal, financial or medical decisions for the benefit of others. A lay person serving as a fiduciary can easily violate fiduciary duties unintentionally due to lack of knowledge, and these mistakes can lead to litigation. When you begin to serve as a fiduciary, consult an attorney to gain legal advice on how to perform your role.

5.  Don’t Involve Beneficiaries in the Planning Process

Estate-planning documents may be challenged on the basis that they reflect the intentions of someone who improperly influenced the decedent. Showing that the decedent was the only person involved in the estate-planning process can prove that the plan reflects their wishes. If a child or beneficiary selected the attorney, drove the decedent to the attorney’s office and sat in on the planning meeting, then serious questions are raised as to who really authored the estate plan.

6.  Consider a Medical Evaluation

A person challenging estate-planning documents may point to the decedent’s advanced age, confusion, memory lapses, physical frailty, medical problems, etc., as evidence that the decedent lacked sufficient mental capacity to understand what they were doing. If you are concerned about a challenge to your estate plan, consider having a physician evaluate your mental capacity. A physician’s determination of capacity, made close to the date of the estate plan, makes the plan very hard to challenge.

7.  Don’t Make Promises You Won’t Keep

While a verbal promise to leave someone an inheritance is typically unenforceable, probate litigation sometimes arises from disappointed expectations.

8.  Document Intentions Regarding Joint Accounts

Bank paperwork does not typically reflect your intention for adding another person’s name to your bank account. This can result in litigation to determine if you added the second person to the account because:

  • You need assistance managing finances, but wish to remain the sole owner of the funds in the account (the account will be an asset in your estate at death); or
  • You want the new joint account owner to automatically receive all the funds in the account at your death.

You can avoid this litigation if you document the reason for adding the other person to the account.

9.  Keep Your Documents in a Safe Place

Probate litigation may arise because an individual’s estate-planning documents are missing at death. Keep your original estate-planning documents in a safe place.

10.  Review and Update Your Plan Periodically

Disputes may arise because estate-planning documents reflect inaccurate or outdated information. Review your documents with your attorney periodically to see if updates are needed due to births, deaths, marriages, divorces or changes in intentions.
In summary, you can minimize the risk of your family becoming involved in probate litigation by making good decisions now.