You think you know your loved ones, but you will never be able to predict how they’ll behave when you die or if you become incapacitated. Of course, we don’t want to believe it or think about it, even. But, most likely, our family members will end up fighting one another in court over inheritance issues or someone’s life-saving medical treatment.
Family dynamics and circumstances are extremely complicated and when tragedy occurs, even minor tensions and disagreements can end up in nasty conflict. Furthermore, when money is part of the issue, the potential for discord is exponentially increased.
But it does not have to be this way for you. You can drastically decrease the opportunities for conflict in your family by planning your legacy and working with an experienced estate planning lawyer, who understands and can anticipate these conflicts. And you are in the right place because preventing family conflict is one of our primary goals for you and your family.
By being aware of some of the common causes of conflict over estate planning, you’re in a better position to prevent conflict and disputes through effective planning. One thing must be clear though, and that is that it is impossible to predict how your loved ones will react to your legacy planning, however, the following issues are among the most common catalysts for conflict.
Problem 1 – Poor Selection of Fiduciary. Many estate planning disputes occur when chosen person to handle our affairs after our death or incapacity fails to appropriately carry out his/her responsibilities. Whether it’s as a power of attorney agent, executor, or trustee, these roles entail a variety of different duties, some of which can last for years.
The chosen individual (known as a fiduciary) is legally required to execute those duties and act in the best interests of the beneficiaries named in our plan. The failure to (1) perform his/her duties, and to (2) act in our best interest, is referred to as a breach of fiduciary duty.
The breach can be the result of the person’s intentional action, or unintentionally by mistake. Either way, a breach—or even the perception of one—could cause real and understandable conflict among your loved ones. This is particularly important when the fiduciary attempts to use his/her role for personal gain, or if the improper actions negatively impact the beneficiaries.
Common types of breaches include:
- Failing to provide required accounting and tax information to beneficiaries.
- Improperly using estate or trust assets for the fiduciary’s personal benefit.
- Making improper distributions.
- Failing to pay taxes, debts, and expenses owed by the estate or trust.
If a suspected breach occurs, beneficiaries can sue to have the fiduciary removed, recover any damages they incurred, and even recover punitive damages if there is malice or fraud.
How to Prevent This Problem. Given the potentially immense responsibilities involved, you must give a lot of thought when selecting your fiduciaries, and make sure everyone in your family knows why you chose that person, and that the person you choose is in your opinion, capable of doing the job. You should only choose the most honest, trustworthy, and diligent individuals, and be mindful of those who might have potential conflicts of interest with your beneficiaries.
Furthermore, it’s equally important that your plan contains clear terms spelling out a fiduciary’s responsibilities and duties, so the person understands what’s expected of him/her. And should things go unexpectedly, you can also add terms to your plan that allow your beneficiaries to remove and replace a fiduciary without going through court.
As your Trusted Estate Planning Attorney, we will assist you with the selection of your fiduciaries; drafting the most explicit, clear, and understandable terms in all your planning documents; as well as ensuring that your family understands your choices, so they do not end up in conflict. In this way, the individuals you select to carry out your wishes will have the best chances of doing so successfully—and with as little conflict as possible.
Problem 2 – Disputing the Validity of Wills and Trusts. The validity of your will and/or trust can be contested in court for a few different reasons. If such a contest is successful, the court declares your will or trust invalid and is treated as if the document(s) never existed in the first place. This would likely be problematic for everyone involved, especially your intended beneficiaries.
- Just because someone disagrees with what they received in your will/trust doesn’t mean that person can contest it. Whether or not the individual agrees with the terms of your plan is irrelevant. Rather, they must prove that your plan is invalid based on one or more of the following legal grounds:
- Improper execution (signed, witnessed, and/or notarized) as required by state law.
- Lack of mental capacity at the time the document was created.
- Someone unduly influenced or coerced you into creating or changing the document.
- The document was procured by fraud.
Only individuals with “legal standing” can contest your will/trust. Those with the potential for legal standing generally fall into two categories: 1) family members who would inherit—or inherit more—under state law if you never created the document, and 2) beneficiaries (family, friends, and charities) named or given a larger bequest in a previous version of the document.
How to Prevent This Problem: Working with an experienced lawyer is particularly important if you have one or more family members who are unhappy—or who may be unhappy—with how they are treated in your plan. This is critical if you’re seeking to disinherit or favor one member of your family over another.
Some of the leading reasons for unhappiness include having a plan that benefits some children more than others, as well as when your plan benefits friends, unmarried domestic partners, or other individuals instead of, or in addition to, your family. Conflict is also likely when you name a third-party trustee to manage an adult beneficiary’s inheritance to prevent them from being negatively affected by the sudden windfall.
Beyond having a comprehensive plan in place, it’s also important that you communicate your intentions to everyone affected by your will or trust while you’re still alive, rather than having them learn about it when you’re no longer around. And we often recommend having a family meeting to go over everything with all affected individuals.
Problem 3 – Blended Families. Blended families increase the chances of a conflict. This is so because if you are in a second (or more) marriage, with children from a prior relationship, your children and spouse often have conflicting interests, which can lead to conflict.
How to Prevent This Problem: To minimize the chances of dispute, it’s important that your estate plan contains clear and unambiguous terms spelling out the beneficiaries’ exact rights, as well as the rights and responsibilities of executors and/or trustees. Those precise terms help in communicating to all parties exactly what you intended.
It’s vital that you meet with all parties while you’re still alive (and of sound mind) to clearly explain your wishes and desires directly if you hope for your loved ones to love each other after you are gone. Sharing your intentions and desires for the future with your new spouse and children from a prior relationship is important to avoid disagreements over your wishes for them.
Anticipate and Avoid. The best option for anyone is to anticipate and avoid disputes before they happen. This means that you should be working with us, your Trusted Estate Planning Attorney to put planning strategies in place designed to anticipate and avoid common instances of conflict. Moreover, it means reviewing and updating your plan to keep it in accordance with your changing circumstances and family dynamics.
Whether the potential dispute arises from disgruntled heirs, sibling rivalries, or the conflicting interests of members of your blended family, as your Trusted Estate Planning Lawyer, I am specifically trained to predict and prevent such conflicts. Meet with us today to learn more.
At Velez Legal Practice, we do not just draft documents; we ensure you make informed and empowered decisions for yourself and the people you love. That’s why we offer a Legal Life Planning Session, during which you will get financially organized and make all the right choices for the people you love.