Tips for Preventing Probate Litigation

Nicholas Stratton
May 19, 2022

In addition to guardianships and conservatorships, will contests, real estate disputes, and litigation over the true intentions of gifts, probate litigation may include guardianship disputes and conservatorship disputes. The most successful approach to mitigating or avoiding probate litigation risk is carefully planning for the future. Comprehensive estate plans that are routinely updated, careful consideration and documentation of gifts, and protective measures in the event of incapacity contribute to a challenge-free transfer of your estate assets to heirs.

A great way to avoid probate litigation is with a Revocable Living Trust that permits you to title assets into the trust and manage it until your death. Years of managing your assets within this trust type prove that you handle your finances and property exactly as you intended if a contest is brought before a probate judge. Your competent management greatly reduces the risk of litigation as it demonstrates your mental capacity and financial management capability.

Gift-giving and real estate transfers to your children during your lifetime may open the doors for litigation after you are gone, particularly if these transfers have complex provisions and varying percentages. Consequences of unequal transfer of property or gifts often lead to children feeling the circumstances are unfair. Your adult children may not interpret your underlying future intent. For example, dividing ownership of the family cabin, giving one child eighty percent and the other child twenty.

The same holds for personal gifts like jewelry, baseball cards, or art collections. A parent may promise the inheritance of a gift, but you may be inviting future probate litigation without detailing it in a document with your signature. Gift promises and real estate transfers often lead to disputes between siblings, leading to probate litigation.

Incapacity can be a challenging topic for a family to work through. Anyone at any age can become incapacitated by a sudden illness or accident. The thought of relinquishing financial and health care decisions to adult children or other family members can be unsettling. But implementing financial and medical powers of attorney can help avoid future litigation between family members. Nominate a guardian and financial and medical conservators while you have sound decision-making capacity and autonomy. They will be designated in both your will and durable powers of attorney documents.

You can still make your own healthcare decisions even with a health care proxy or medical power of attorney. They can only make these decisions once a doctor deems you physically or mentally incapacitated. In contrast, a durable financial power of attorney will retain decision-making powers over finances upon signing the document. An estate planning attorney helps you identify the criteria to consider for your specific needs when making decisions for this crucial role. Select both of these representatives well in advance of the unforeseen events that will require their help.

Establish your will and trusts early on as they are vehicles to control and communicate your personal and real property distribution to heirs. Your will protects your family from intestate statutes or laws that govern dying without a will. Your will nominates a personal representative to oversee your estate, the payment of outstanding debts, final taxes, guardianship, and the dispersal of remaining assets.

Note that most states will not consider stepchildren as part of an inheritable estate without a will specifically including them. Without a will naming a representative, most families typically fight over who is best suited to the job. This situation can lead to expensive and time-consuming litigation.

Your will and the naming of financial and medical durable power of attorney representatives are crucial estate planning elements to avoid probate litigation. To guard against litigation more fully, creating a Revocable Trust will preclude court oversight all together except in the case of a challenge. However, if you have been competently overseeing the Revocable Trust, this presents a formidable challenge to contest.

A will, durable medical and financial powers of attorney, and a trust complement each other to provide a strong defense against probate contests, but it is not guaranteed. However, your estate planning attorney can make provisions for all documents to be unambiguous, increasing the probability of avoiding any potential future litigation. We hope you found this article helpful. If you’d like to discuss your particular situation, please don’t hesitate to reach out. Please contact our New Jersey office or call us at (201) 464-2040 to discuss your legal matters.

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I am an attorney and chose Nima to prepare our estate documents because he is knowledgeable, thorough, and prompt. In fact, Nima was ready to go over the documents he prepared well before my wife and I were. Nima knows what he is doing and gives matters the attention they deserve.
Alex Pisarevsky, Partner, Cohn Lifland Pearlman Herrmann & Knopf LLP

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