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Incorrect Planning Now Can lead to Probate Litigation in the Future

Everyone wants to avoid Probate, but it’s often the errors during someone’s life that lead their family to a long and arduous probate process like the nightmare cases you hear about. You can avoid probate litigation by having a good estate plan in place and letting your families know what our plan is. Surprises are bad in this instance.


Probate litigation often involves estates with DIY self-prepared estate documents. Also, handwritten forms and documents from online resources lead to many mistakes that you may not foresee because there are small nuances in the law that the form generator didn’t know to advise you of.


Litigating over legally defective documents often far exceeds the cost of hiring an estate planning attorney to prepare them correctly.


I recently spoke to a client who paid a non-lawyer to prepare a deed for her father before he passed away. She was sure that the deed automatically transferred her father’s home to her after his passing. That would have happened had the deed been prepared with the proper language. Instead, she saved money by going to a non-lawyer to prepare the deed, but now she will spend much more time and money going through probate. In this case, because the deed was not prepared properly, and her father did not leave a will. She will share ownership of the home with her half-siblings. She was speechless when I told her about her current standing.


Have an open dialogue with your family about your estate plan and intentions should you become incapacitated or pass away. Your estate plan should include:


Comprehensive protective measures if you become unable to handle your own affairs. A simple will is not enough. Also, be sure to include simple transfers of real estate and document gifts given to family members during your lifetime.


Be brutally honest about your family dynamics. This can often prove 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 financial or medical power of attorney can cause conflict and mistrust among siblings. You may consider selecting a trusted but neutral third party or professional fiduciary to administer your estate.


Don’t make verbal promises about inheritances. They are legally unenforceable and can contribute to someone challenging your estate plan. The best strategy is to manage the expectations of your inheritors honestly and directly by only making promises you are willing to document legally.


Some probate disputes arise because estate planning documents reflect outdated or inaccurate information. Life changes that include births, marriages, divorces, deaths, and changes in your intentions may all affect your estate plan wishes. Keeping your relevant legal documents safely stored and knowing they are accurate and routinely undergoing review will reduce the likelihood of probate litigation.


When you have a properly prepared estate plan by an attorney, it will help reduce the risks of probate litigation within your family.

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