Beyond The Will, Client Compass

Avoiding Probate Litigation: An Attorney’s Top 5 Tips

October 28, 2021


The most basic and streamlined approach to avoiding probate litigation is planning ahead. Plans may include full, comprehensive estate plans, simple transfers of real estate, the implementation of protective measures or naming agents in the event of incapacity. Individuals with cordial families typically argue that the expense and burden of planning ahead do not always outweigh the benefits. However, guardianship and conservatorship disputes, Will and trust contests, and fights over family real estate and gifts are only a few types of avoidable litigation attorneys see every day. The investment upfront for a seasoned attorney and a well-thought-out plan will save you time, money, and emotional turmoil.

Establish Protective Measures: 

Establish your “in case of emergency” measures as soon as you can. These protective measures include identifying guardians and conservators in your estate planning documents so that the decisions are already made upon your incapacity. Many individuals are apprehensive about relinquishing financial and health care decision-making powers to their children or family members. However, these choices are critical in avoiding litigation between family members down the road. As individuals age and are no longer able to make decisions for their health and well-being, family members are often left with the burden of deciding who is appropriate to serve in those decision-making capacities. These decisions often are made whilst individuals undergo significant medical treatments or health deterioration, welcoming family strife.

By planning ahead and nominating a guardian and conservator now, while you have the autonomy and decision-making capacity to do so, you prevent obligating family members in the future and opening the door to familial disputes. The benefit of nominating a guardian and conservator now is that, if and when an individual is deemed incapacitated, the Court must give preference to the nominated fiduciary. When the incapacitated person has no nomination or expressed intent, the Court can appoint “any suitable person” as guardian or conservator. It is imperative in avoiding litigation to nominate an individual now and work with them on your future plans and wishes in the event of incapacity. Disputes include contests over who is a suitable person, and arguments over decisions made by the appointed fiduciary and the powers that fiduciary holds. This nomination may occur in the individual’s last Will and testament, durable power of attorney and/or their health care proxy.

Nominate Your Agents:

Another method of proactive planning is nominating your health care agent and/or durable power of attorney today for tomorrow’s decisions. Health care agents can be created through the execution of a health care proxy. Individuals typically find comfort in the idea that health care decision-making powers do not vest in their agent until the individual is unable to make decisions or is deemed incapacitated by a doctor. Depending on the language of your health care proxy, you can grant (or deny) various powers related to intrusive medical procedures, end-of-life care and treatment, and/or releases of information. A durable power of attorney typically retains their decision-making powers over finances the moment the principal signs the document. There are various options to consider when making decisions regarding an attorney-in-fact. Again, it is critical to establish these agents before conflicts arise between children and family members. Without an agent in place, the biggest roadblock clients face is when they need to act on behalf of a parent, either medically or financially, thereby requiring Court intervention. Children with aging parents sometimes need to quickly get involved with health care decisions or the management of large assets but are unable to do so because their parent did not nominate a health care proxy or power of attorney. As a result, children are forced into Court to obtain various necessary powers to protect their parent.

Proper Will Creation and Execution:

Establishing a Will before one’s death allows a testator (the person creating a Will) the opportunity to control and communicate their wishes for their personal and real property. The testator is also able to nominate their personal representative or the individual charged with administering the estate upon the testator’s death. By creating a Will, the testator’s family or those administering the estate can avoid intestate statutes established in Massachusetts. These statutes govern distributions of estates where the testator has left no Will. The nominated personal representative also has priority to serve as such, and the Court appointment is generally automatic (pending objections from interested parties). Without this nomination from the testator, family members typically fight over who is best suited for the job, leading to litigation and expensive contests.

It is imperative to work with an experienced trust and estate attorney when executing one’s Will. There are various requirements for the execution of a Will, including testamentary capacity. Though varied state by state, Wills also are typically executed in the presence of witnesses and a notary, both attesting to the testator’s capacity and willingness to sign their Will. Proper execution is key in avoiding future litigation, as claims that the Will was executed without witnesses, the testator did not know what they were signing, or the testator was unduly influenced are typical scenarios in probate litigation.

Trust Creation and Unambiguous Language:

Creating a trust is an even better method of avoiding probate litigation, as trusts typically prevent court oversight altogether. Whether in a trust or a Will, it is imperative that provisions are clear and unambiguous to avoid future litigation. Vague and outdated terms regarding the disposition of property often lead to lengthy contests regarding interpretation. The misuse of words, such as accidentally using “Settlor” when you meant “Trustee,” can lead to costly litigation if that mistake impacts the beneficiaries’ distributions. Trust litigation is typically charged directly to the trust, and therefore, against beneficiaries. If you have questions or need clarification regarding a certain provision, ask now while the drafter has the opportunity to explain.

Transfers of Real Estate and Gifting:

Lastly, transfers of real estate may also open the doors for litigation if the transfers include complicated provisions and varying percentages. The use of percentages may not be an ideal arrangement when dealing with adverse children. Consider the realities of granting 50% ownership to each of your two children who are no longer speaking to one another. A forced sale of the property and litigation over who pays what may occur. If your intent was for the children to remain in the home, each profiting off rental income, be clear. Forcing children to interpret your underlying intent in the future is not only burdensome but creates more disputes between siblings. In addition, documenting gifts made or received is also helpful in avoiding future litigation. If you intend to gift your daughter your string of pearls, put it in a writing to accompany your Will. Simply stating aloud your future intention to gift is not the creation of a gift. It does, however, create an opportunity to dispute when one child claims they were gifted an asset and the other disagrees.

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