Mitigating the Risks of Litigation – Part of an Effective Estate Plan
20 July 2022

Even if you think your Will is perfect, you will still be subject to estate litigation. No matter how meticulously drafted, a will or a codicil can be challenged by anyone. What you did in preparing your will while you were alive to minimize the risk of litigation will determine whether or not that person is successful and the amount of legal fees you must pay.

If you believe your estate will be litigated after your death, there are a few things you can do to lessen the likelihood and cost of a lengthy and expensive court battle:

Create a legally binding will in the form of a document

As long as they've discussed their final wishes with loved ones, some believe their assets will be distributed without issues. It's not uncommon for probate courts to reject oral wills. If you pass away without making a will, your assets will be distributed according to the state's intestacy law. This could have unintended consequences and even lead to litigation.

The probate judge accepts a set of rules for writing a will. One of the most important things you can do is to make a will, put it in writing, and date it. With the help of an estate planner, you can ensure that your wishes for the future are carried out. Your loved ones will have no room for confusion or misinterpretations if you communicate with clarity.

Choosing an executor is one of the most important decisions you can make

If you believe a family member will contest your will, appointing a third-party executor may be a good idea. Emotionally invested executors like spouses and children can unintentionally generate legal fees to skyrocket as parties take sides, disagree simply for disagreement, and cause every issue to become contentious, no matter how minor.

Probation should be avoided as much as you can

Probate is a legal procedure that may take a long time to complete when someone passes away and leaves behind a will and assets. Generally, the more time your estate spends in probate; the more likely someone will sue.

Reduce the likelihood of litigation by removing as much of your estate's assets as possible from the probate process. Revocable trusts are often used to transfer property ownership to someone else (the trustee) to be held for your benefit while alive. It is then exempt from the probate process after your death because the property no longer belongs to you. Unlike a probate court suit, challenging a trust can be more expensive.

Making gifts while you're still alive and establishing joint ownership of property, which gives the joint owner the right of survivorship over the property if you die first, are two other methods of avoiding probate.

Avoid it if you know that making a general bequest will only lead to a fight

Specify what you'd like someone to receive if you want them to accept it. As everyone claims they had been told, it's not uncommon for siblings to get into arguments over a single personal item. Make a photo album of the gifts you want to give specific people. Your written instructions should be attached to the backs of the photographs. However, your executor can get a general idea of what you want from your will by following your instructions.

Designate a power of attorney in an advance directive

Many disputes arise due to late-life changes to the decedent's will. Whether or not the decedent was influenced by a new heir and questioned about their mental capacity may come into play. Those fears can be eased with the help of a health care advance directive and durable powers of attorney. Advance directives outline the level of care you would prefer in the event of a medical emergency or if you become incapacitated. In the event of your incapacity, a person with medical and financial powers of attorney can act on your behalf. There are advantages to having these in place while you are still young, such as proving that any changes in your will are legal.

Your children (and stepchildren) should receive an equal share of your estate if possible

In many families, one child feels that they have been mistreated compared to another. Don't forget to mention any set-off if you're reducing someone's share of the estate due to a loan you made to them while you were alive, and make a written acknowledgment. If the disgruntled beneficiary suddenly claims that no advance was made or that the advance was a gift, the executor can use this as evidence to show that no such advance was made.

No matter how hard you try, there is no guarantee that you will avoid estate litigation. The best strategy is to minimize risk; there are many options and avenues to pursue this goal.