Saturday, August 8, 2009

How And Why Does Probate Litigation Arise? Can You Plan To Avoid Probate Litigation?

How and why does probate litigation arise? Some people think that it is solely due to greed. In the case of family situations, there is sometimes more at issue. Some family members, especially children, have long standing resentments that may go back many years. That resentment may be based on perceived or actual unfair treatment.

Sibling rivalry has been around since biblical times and has not gone away. In addition, often the last living parent is the only thing holding the family together and when that parent passes away, the conflicts come out in the open.

If you are involved in probate litigation or think you may become involved, you are not alone. If you are in the estate planning stage, you can take action to help minimize the risk of probate litigation.

What are some types of situations that tend to lead to probate litigation?

1. Sibling rivalry and/or treating children differently

Family relationships can be fulfilling, but they also can be very hard. It appears that many misunderstandings arise because of the fact that people do not always communicate clearly with each other (often for years), leading to unresolved issues. Sometimes it is just too painful for people to address issues that really should be addressed.

Estate planning lawyers are not psychologists, but they understand the difficult situations some families are in and are able to help clients deal with difficult family issues in a proactive way.
For example, estate plans that "cut out a child" or "treat children differently" need to be planned and documented well in order to minimize probate litigation.

2. Second or Multiple Marriages

Some people marry for a second (or even third or fourth) time without signing a premarital or prenuptial agreement (pre-nup) before the marriage. Many people mistakenly believe that the sole purpose of a pre-nup is to specify how their assets will be divided on divorce. Although such matters can be addressed in a pre-nup, estate planning lawyers are more concerned with the “messy issues” that develop on death.

Estate lawyers have an optimistic attitude that their clients’ marriages will work out; they have a pessimistic attitude when it comes to death, however—all of their clients will die someday. The pre-nup is one of the best ways to avoid probate litigation on death. It can also avoid a very expensive “forensic accounting” on the death of the first spouse.

Pre-nups and how to address a subsequent marriage in estate planning will be addressed in a separate article.

3. Creating a “Nonstandard” Estate Plan

Some examples included estate plans that create overly detailed trusts attempting to “control from the grave and make gifts to mistresses. It may not not matter if the person creating the plan has “good reasons” for doing what he is doing. A nonstandard estate plan increases the odds for probate litigation after death.

4. Not Appointing the Right Fiduciary

Serving as the executor of an estate, the trustee of a trust, or an agent under a financial power of attorney requires a huge commitment of time and effort and absolute honesty. When determining who should be named in these important fiduciary positions, the personality traits and skills of the appointee should be carefully considered.

It would be a mistake to name someone in one of these fiduciary positions who does not communicate well with the beneficiaries, does not read (or listen to) and follow the instructions of the attorney advising him or her, procrastinates in getting things done, is not 100 percent trustworthy, may be susceptible to the (bad) influence of his or her spouse or someone else, is arrogant, conceited, or a “know it all,” is disorganized and/or loses things, and is lacking in common sense.

Further, it is often a mistake to name two people to act together as co-fiduciaries (unless both individuals are extremely mature, sensible and well-adjusted, good communicators, and good at coordinating their efforts).

5. Ill-Conceived or “Faulty” Planning

There is a range of what would qualify as “bad estate planning.” Some bad estate planning is the result of incompetence and/or lack of experience on the part of the attorney who prepared the plan. Others are the result of individuals trying to do things themselves that are not well thought-out. Examples of this type of poor planning will be addressed in a separate article.

6. Failure to Follow Up

This category includes the situations where the client (or his or her attorney):

(1) fail to review the estate plan on a periodic basis (estate plans become outdated very quickly now);

(2) fail to do the necessary “homework” incident to the estate plan (such as retitling accounts and completing beneficiary designation forms as instructed so that nonprobate assets are coordinated with the client’s estate plan in his will or trust);

(3) fail to change the will, account titles, and beneficiary designations after marriage or divorce; and

(4) fail to retitle all the assets in the name of the living trust before death if the intention is to avoid probate completely.

Not all probate litigation can be prevented, of course, but a large portion of probate litigation can be prevented by good planning. Good planning is what estate planning is all about. Good planning and goal setting is important in probate litigation as well.

With respect to probate, Hank Moravec has over 20 years' experience as one of the best Los Angeles probate attorneys and Los Angeles probate litigation attorneys and is available should you need legal advice regarding your own or a family member's situation. For a consultation, You can e-mail Hank Moravec at hm@moravecslaw.com or call him at (626) 793-3210 to request a consultation.

The firm website is http://www.moravecslaw.com/. The firm is located at 2233 Huntington Drive, Suite 17, San Marino, California 91108. There is ample free parking adjacent to the firm's office.