As someone once said, “folks are serious about three things: their religion, their family and, most of all, their money.” Estate planning involves all three, so it’s unsurprising that conflicts often arise after a loved one’s death. The good news is that there are pre-emptive steps you can take to avoid these conflicts, and ensure the focus is on celebrating you or your loved one’s life and not on how the money is divided.
First, it is important is to be honest with yourself and recognize whether your family has any of the relationships that often lead to litigation after death: feuding siblings, re-marriages, disparate treatment, mental illness or addiction issues, isolation, or economic hardship. These motivators are often the kindling that spark fights over money after death.
If you have any of the above circumstances, talking with your estate-planning attorney early and often is a good idea. Keep your plan up to date and make sure that your family is aware of how you’d like your assets to be distributed. If you have a trust, appointing non-family as the trustee will eliminate many possible disputes. Alternatively, you could distribute your assets while you’re alive and able to address any disputes over who receives what.
If you do choose to gift any of your assets, or you are receiving gifts from an elderly loved one, beware of the context of these gifts as conflicts could arise from the existence of a confidential relationship. If a family member provides you with regular care or vice versa, the court may find there was a duty to act without any self-interest. You may want to provide gifts to show your appreciation, but that could create a conflict of interest with the family member who has been caring for you. The best thing to do to avoid any potential issues is to see your lawyer and ensure that all gifts are documented and the transfer is done transparently.
Second, be aware of what causes people to contest wills. If you’re going to exclude an individual from your will who would otherwise reasonably expect to receive a portion of your assets, be sure to document your thought process and discuss your decision with your lawyer. If you were unexpectedly excluded from a will, there are some questions that may help you evaluate your case, such as whether your loved one had been isolated from friends and family or vulnerable in some way. Regardless of which side of the dispute you stand on, acting quickly and speaking with a lawyer who can assist you is key.