How to Deal With Estate Litigation

Death is just the beginning. When a loved one passes, navigating through the probate process can dredge up unresolved emotions and family conflicts, all intensified by grief. As survivors find themselves rehashing the past, the settlement of probate can ignite long-buried resentments. If the parties have been looking for a fight for years, probate unleashes an opportunity to reopen old wounds.

Often times, probate litigation is driven by intense emotions. Disappointed or disinherited beneficiaries attempt to reconcile their feelings with the directives of wills and trusts. Excluded beneficiaries do not always easily accept that the decedent was expressing their wishes with a clear-head when deciding to cut out or reduce their expected share. Many times, disgruntled heirs will rationalize the outcomes of being left out of inheritances by making claims of undue influence or coercion; especially in instances where the decedent was elderly and may have had others caring for him or her when they drafted their estate plan.

Managing expectations

Attorneys and mediators are often reluctant to address the emotional issues that arise when parties litigate an estate. Some may feel that is the domain of family counselors or psychologists, while a lawyer’s responsibility is to. dispense legal advice, assess the merits of a case, provide relevant tax and property information, or pursue a painstaking discovery process.

However, lawyers do and should have a role to play in setting expectations, especially for what can prove a painful and drawn-out legal battle. They can help clients understand that even winning is not necessarily an end in itself. Is money in fact the true driver for an estate dispute, or does it primarily serve as the ammo to keep the dispute alive?

Even mediation — which becomes the normal route for most estate contests — may not work if the goal is to get even or punish at all costs. Parties must at least be willing to engage in some give and take to reach a settlement.

Preparing for the worst

While the testator is still alive and mentally competent, attorneys play a critical part. As they prepare estate documents, they must be mindful of a few basic steps to lessen the chances of bitter emotions later coming to the fore:

• Proper drafting and execution.
• Explaining to family members the reasons behind asset division.
• A “no contest” clause to discourage disgruntled beneficiaries from challenging.
• Reaffirming mental competency with a medical examination.
• Avoiding any indication of undue influence by keeping beneficiaries at arm’s length or drafting a letter of explanation separate from the Will, which lays out a rationale for the decisions in more detail

It is important to note that some experts disagree with leaving a letter of explanation, contending that too much explanation can backfire, adding fuel for litigation and room to question the testator’s decisions. That latter school recommends a straightforward and factual drafting, avoiding the temptation to be punitive or overly explicative.

Find a lawyer you feel comfortable with to assist you in preparing your estate plan or settling a family member’s estate. A trustworthy attorney can make all the difference while you navigate the estate planning and administration processes during a time of   difficult emotions.

Do you have questions?

Count on our experienced team at Ericson, Scalise & Mangan, PC to provide you with sound guidance for your Estate Planning, Elder Law, Real Estate, Probate, Trust & Estate Administration, and other legal needs. For assistance, contact us today at (860)854-3809, or email us at info@esmlaw.com.