One step can greatly reduce the risk of probate litigation

Estate plans can cause tension. Here is one way to avoid future issues.

What is one of the top causes of probate litigation? According to the American Bar Association a common issue is what has been coined the "dysfunctional family." Think this could not possibly happen to your family? Think again. "Dysfunction" often happens when people believe they are acting in accordance with their loved one's wishes.

How can families avoid estate litigation issues? The easiest way to avoid this problem is to discuss your intentions with family members. You can reduce the risk of litigation if everyone in the family is clear as to your wishes.

These discussions are often most successful when the following are addressed:

  • Beneficiaries. Discuss who is going to receive assets from the estate. It may not be easy, but try to explain any exclusion or disparity in the distribution.
  • Healthcare wishes. Keep in mind that your estate plan covers more than just distribution of assets; it likely also has documents that outline what your medical wishes are in the event that you are unable to communicate these wishes yourself. This could happen in the event of an accident or disease. A proactive discussion can not only reduce the risk of litigation during what is likely a very stressful time, but can also provide peace of mind for the person tasked with making these decisions.

Unfortunately, such discussions are rarely easy. This is particularly true in the event of a "nonstandard" estate plan.

What makes for a "nonstandard" estate? A nonstandard estate often involves an uneven distribution of assets amongst children. An example involves the complete exclusion of a child from the will. Other examples involve one child getting more than the others. Perhaps this choice is justified by one child having children of his or her own, or that this child may simply need the money more than the others. Whatever the reason may be, explaining it to the children can help avoid costly litigation in the future. Litigation that would likely result in a reduction of the distribution available for all heirs.

What if there is litigation? Even with these steps, litigation may occur. As such, it is wise to take steps to better ensure your estate plan can survive a challenge.

Estate plans must be crafted within the means of the law. A failure to follow proper protocol can weaken the plan. The use of boilerplate estate plans is also full of potential issues. Mistakes common with these documents can include failing to follow proper formalities when signing the document and typos. These issues can be reduced by seeking legal counsel. An experienced attorney can craft a plan to meet your needs, better ensuring these wishes are met even if the document is challenged.