Probate Litigation and How To Reduce Risk

Nicholas Stratton
October 7, 2021

Many family circumstances can increase the risk of probate litigation. Still, there are two fundamental reasons: families disagree with how to handle a mentally incapacitated family member or, after death, disagreements regarding the dissolution of the estate. High-risk factors that often bring about probate litigation can include sibling rivalry, second marriages in the absence of a prenuptial agreement, a dysfunctional family, and a non-standard estate plan. A non-standard estate plan often treats children differently, omits a child, maintains an overly detailed trust, gifts to mistresses, or appoints an arguably substandard fiduciary.

Taking these risks into account and having open dialogues with your family, implementing a comprehensive estate plan with protective measures in the event of your incapacitation, simple transfers of real estate, and documentary evidence of supposed gifts will reduce the risk of probate litigation. In essence, 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 probate litigation that can lead to terrible family consequences.

What is Probate Litigation?

Probate litigation often involves estates with self-prepared estate documents. Handwritten and forms from online resources lead to many mistakes that a layperson cannot foresee. Money that winds up litigating over defectively drafted documents most often far exceeds the cost of hiring an estate planning attorney to prepare your documents correctly. Ensure you hire a highly skilled trust and estate attorney through trusted recommendations and looking for meaningful professional peer recognition groups.

How to Reduce the Chance of Probate Litigation?

Reducing the chance of probate litigation also requires you to be hyper-realistic about your family dynamics, which is often 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 fiduciary or medical power of attorney can inspire conflict and mistrust among siblings. Often it is recommended to select a trusted but neutral third party or hire a professional fiduciary to administer your estate.

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 for the benefit of others. 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 to understand the rules and role they will fulfill.

How an Attorney can Help You Plan to Avoid or Navigate Probate 

When you begin your planning process, it is best not to include your beneficiaries. Undue influence over a benefactor can become a legal issue if family members sense someone intended to influence the estate decision-making process of the decedent improperly. Undue influence can include behaviors as seemingly innocuous as driving the decedent to the attorney’s office and attending estate planning meetings. Questions about whether the plan truly reflects the decedent’s wishes and who authored the estate plan can lead to probate litigation.

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 thwarting any challenges regarding your mental fitness. Along the same lines, do not make verbal promises about inheritance you will not keep. Verbal promises are legally unenforceable and can contribute to someone challenging your estate plan and pointing out inconsistencies in your overall thought processes. 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 relevant legal documents safely stored, knowing they are accurate and routinely undergo review, you 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 with well-crafted legal documents reflecting your wishes. Please contact our New Jersey office or call us at (201) 464-2040.

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My wife and I worked with Nima Ashtyani for our wills, powers-of-attorney and health care directives. He was very patient with our questions and quick to turn around documents and revisions. We felt well-served by Nima and the practice.
Neal Freeman

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