Siblings flinging insults, caretakers arguing over their share of an estate, and families contesting wills in heated court battles is not, unfortunately, solely the subject of soap operas. While most families behave relatively well, lengthy and expensive legal battles over estates can occur, and when they do, they often drag on the probate process, create ill feelings between family members, and even compromise the true intentions of the deceased.
If you’re concerned that your death and will could create discord in your family, there are things you can do ahead of time to minimize strife and promote cooperation. Here are a few things to keep in mind while going through the estate-planning process:
(Please keep in mind that the tips below are suggestions and should not be interpreted as legal counsel. If you have questions about your estate planning or need help drafting a will or trust, you should seek the help of an experienced probate attorney.)
Tips to Minimize Disputes over Your Estate
Put some thought into your personal representative. Naming your oldest child your personal representative might seem like the most obvious choice, but it’s not necessarily the best one. You need someone who is going to remain calm under pressure, who has the time to dedicate to the sometimes-consuming estate administration process, and who will be responsible about submitting all necessary documents in the allotted time frame. If you don’t think that your oldest child (or any of your children) can meet all these requirements, consider naming an unbiased third party.
Be as detailed as possible in your will. Disputes often erupt if a will is written in vague or confusing terms. To make matters worse, probate—the process during which a judge determines how to distribute your assets using your will as a guide—may last longer if you’re not as clear as possible in your will.
Explain your inheritance decisions to your family now. If you are, for example, giving certain assets to certain benefactors based on sentimental value, you should explain your reasoning behind this decision while you are alive in an effort to mitigate hurt feelings.
Create a living will. Living wills are exactly what they sound like: a document that explains how you want your wishes carried out while you’re still alive, if at some point you are no longer able to make your own legal and financial decisions. In this will, you should appoint someone you trust to make your healthcare decisions if you become disabled or mentally incapacitated. Although it might not be pleasant to think about, preparing for this possibility will put less stress on your family because they won’t have to guess at your wishes.
Create a trust for assets that you don’t want to go through probate. A lot of people make the mistake of assuming that after their death, their assets will immediately be distributed based on the instructions in their will. In reality, your will doesn’t hold any legal power until after it goes through probate, a process that can take months or even years. Because your will has to go in front of a judge in order to be validated, this can be a very public process that is upsetting for some family members. If you have assets that you don’t want to go through probate, you should create a living trust, which allows your appointed trustee to transfer assets in the trust to named beneficiaries. As with a will, you should be as detailed as possible when creating a trust in order to avoid conflict.
Careful planning can significantly reduce the opportunities for family in-fighting after your death, so take the time to meet with an estate administration attorney.
About the Author:
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.