By Mary Ellen Flynn, Esq., 301.563.6685
Many people believe that simply having a Will or a Trust guarantees that they avoid estate litigation.
However, it is easy for us to underestimate the ability of money and inheritance to cause family conflicts. What can start as a simple disagreement between beneficiaries can grow into an ongoing legal dispute that lasts for years. While estate planning costs can be expensive, these come nowhere close to the emotional and financial drain of estate litigation.
To minimize your chances of going through estate litigation, we suggest the following:
1. Hire a Trustworthy Estate Planning Lawyer.
It is essential to hire an experienced estate planning attorney while you are still healthy and have a sound mind. Having an attorney involved early in the estate planning process can help you avoid the common pitfalls that can lead to probate litigation, giving you peace of mind.
2. Communicate. Communicate. Communicate.
The most common cause of estate litigation is surprise and disappointment by family members and other potential beneficiaries. One way to prevent estate litigation is to communicate with your intended beneficiaries precisely what you would like them to inherit. Conversely, you should have an open and candid conversation with those to whom you don’t intend to inherit from your estate or who will inherit unequally to others. Not only does this prevent any beneficiary of your estate from being surprised, but if estate litigation arises, you have created a witness who can substantiate that your estate planning documents do reflect your wishes.
3. Keep it Simple.
Many people think that estate planning documents need to contain particular flowery language to be legally viable. Unfortunately, in many cases, incorporating such language creates ambiguities that inevitably lead to estate litigation. While some clauses do need to be tightly worded to accomplish the desires of the testator/grantor, simplicity and clarity in wording can go a long way in preventing confusion among your beneficiaries and trustees. Make sure you work with your attorney to ensure that the terminology of your documents is clear and concise.
4. Appoint People You Trust.
When appointing a Personal Representative or a Trustee, some people think to appoint an intelligent family member. While it does not hurt to appoint someone smart, we recommend selecting someone trustworthy and good at meeting deadlines. The person you specify must be someone who will best represent and communicate your intentions, as stated in your estate planning documents. The appointed person should also be honest and transparent with the probate process. Suppose you do not feel comfortable handing this critical role to those you know personally. In that case, you should disclose this to your estate planning attorney, who may be able to assist you in determining a proper appointment.
5. Prepare for Incapacity.
It is crucial to have a plan in place if you have a medical condition that prevents you from making your personal and financial decisions in your best interest. By appointing a Power of Attorney that comes into effect upon you becoming incapacitated, you protect your estate in a time when you are most vulnerable.
6. Add an in terrorem clause to Limit Legal Challenges.
Courts have generally upheld the validity of in terrorem or no-contest clauses. These clauses penalize any beneficiary who brings a legal challenge to the validity of your estate planning documents, causing the beneficiary to lose their inheritance entirely. The mere threat of disinheriting from your estate can discourage your beneficiaries from initiating legal action.
7. Update Your Estate Planning Documents Regularly.
An estate or family situation can change quickly. Whenever such changes occur, be sure to revisit and update your estate planning documents to reflect changes in bequeathed assets, beneficiaries, personal representatives, or trustees. In addition, we generally recommend that clients revisit their estate planning documents every five (5) years to ensure that their desires for their estate are still appropriately reflected in them.
Estate planning can be challenging to navigate, especially since we do not know what the future holds. If you have questions or need legal guidance on an estate planning matter, don’t hesitate to contact me today.
About Andalman & Flynn, P.C.: Founded in 1998 in downtown Silver Spring, Maryland, Andalman & Flynn has forged a distinguished reputation for legal excellence. The firm represents individuals seeking disability benefits throughout the country and practices family law throughout Maryland and the District of Columbia. The firm focuses on cases that impact the rights of everyone, and are there for clients when responsive legal help is most critical. The firm has provided legal analysis on national and local television and radio, and their attorneys often testify before legislative bodies and are routinely invited to contribute to prominent legal publications. For more information about Andalman & Flynn, please visit the website at andalmanflynn.com or call 301.563.6685.