Probate is a complex legal process that most estates must pass through. When probate litigation becomes necessary, however, the matter grows significantly more complicated, requires more time, and becomes substantially more costly. Fortunately, there are proactive steps you can take now to reduce the risk that your estate will end up in probate litigation.
One of the most important is consulting with an experienced Round Rock estate planning attorney early in the process.
What Is Probate Litigation?
Probate litigation refers to the legal process in which probate disputes are resolved by the court rather than through mediation or negotiations among heirs. These disputes arise during the administration of a loved one’s estate and require court intervention.
While probate is intended to finalize an estate, disputes requiring judicial resolution transform the process into litigation. As you begin your estate planning, your goal should be to take the necessary steps to help ensure your estate avoids this outcome.
Estates most likely to trigger probate litigation are often created without the guidance of a knowledgeable estate planning lawyer. Estate planning is a nuanced area of law, and working with a dedicated attorney from the start can make a meaningful difference in how smoothly your estate is administered.
Factors That Increase the Likelihood of Probate Litigation
While every probate dispute is unique, certain common factors tend to increase the likelihood of litigation.
Family Conflict
Some families are harmonious, while others experience ongoing tension. Although family dynamics alone don’t determine whether an estate will lead to litigation, estates involving preexisting family strife are often more vulnerable to disputes.
Settling an estate coincides with grief and emotional distress, which can lead to unpredictable behavior even among otherwise reasonable people. If you exclude a family member from your will or include surprising provisions, it may spark challenges to the will's authenticity or your mental state at the time of execution.
Discussing your wishes in advance and distributing your assets equitably can help minimize conflict. If you want to make unconventional choices, discuss them with a trusted estate planning lawyer in Round Rock who can help you document your intentions clearly and effectively.
Multiple Marriages
If either you or your spouse has been married before, especially if there are children from previous relationships, the complexity of dividing your estate fairly can increase dramatically. The more complicated your family structure, the greater the chance of misunderstandings or disputes.
To reduce this risk, work closely with an experienced estate planning attorney who can help you navigate these sensitive situations with care.
Choosing the Wrong Executor
The executor of your estate is the person whom you choose to manage its administration throughout the probate process, and it’s important to pick the right person. Simply choosing your spouse or your oldest child as a matter of course may not be the best option for you.
To begin, leaving the responsibility to your spouse may be more than they can bear in the context of their immense loss after your passing. Further, your oldest child may not be the best candidate, and they may be the first to admit it.
The qualities you’re looking for in the executor of your estate include all the following:
Financial savvy
Strong organizational skills
Willingness to take on the role
Trustworthiness
A solid commitment to fair dealings
Excellent communication skills
Compassion and empathy
The ability to stay the course and navigate the probate process while effectively resolving any concerns that have the potential to require probate litigation
A keen understanding of your wishes and the desire to carry them out
If your candidate for executor of your estate checks each of these boxes, you’ve made an excellent choice, and your estate is far less likely to make its way to probate court.
When one child is chosen over another, it can stoke hostilities in some families, which isn’t your goal. After carefully considering the dynamics of your family, you may find that choosing a neutral third party to serve in the role of executor is a better option, but only you can make this call.
Give the matter careful thought, which may include talking things over with your children to determine what makes the most sense for everyone involved.
Quirky or Unexpected Stipulations
The quirkier or more surprising your will is, the more likely it is to be contested and the more likely it is that probate litigation will be necessary.
For example, if you give a big chunk of your estate to someone that no one in your family could have predicted, you’re treading on thin ice when it comes to whether or not your will can avoid litigation. When you include odd, overly complicated, or unexpected stipulations in your will, it can lead to the same problem.
If your will sends a strong message that your family is not expecting to hear, you should know that your estate could be headed directly for probate litigation, and the outcome could be very different from your intentions when you created your estate plan.
If you have something you want to say to your family, there is likely a better way of doing it than springing it on them in your will.
Outdated Estate Plans
Wills created years or decades ago may no longer reflect your current situation. Failing to update your estate plan as your life evolves can lead to confusion, misunderstandings, and disputes.
Scheduling a regular appointment with your focused estate planning attorney is a great way to ensure that your will reflects your family’s current needs and is a clear reflection of your wishes. Putting in this effort up front can go a long way toward keeping probate litigation at bay.
The Role of an Estate Planning Attorney
An experienced estate planning lawyer can help you implement tools and strategies designed to minimize the risk of probate litigation. For example, your attorney may recommend limiting beneficiaries’ involvement in the planning process to reduce claims of undue influence.
Your attorney may also advise scheduling a medical evaluation to establish your sound mental and physical condition, which helps protect your will from challenges.
Avoiding Common Triggers of Litigation
Verbal Promises
Avoid making verbal promises about inheritances. These informal commitments can lead to confusion and disappointment, potentially triggering litigation. Instead, document your intentions clearly in your will.
Undue Influence
Be mindful of the appearance of undue influence. For instance, if one child accompanies you to all attorney meetings, it might raise questions later. A neutral approach is best.
Self-Proving Affidavit
Including a self-proving affidavit with your will can significantly streamline probate and reduce the chance of litigation. This document, signed by you and two witnesses before a notary, affirms the will’s authenticity and helps validate it in court.
Consult a Skilled Round Rock Estate Planning Attorney Today
Brett Pritchard at the Law Office of Brett H. Pritchard is a respected estate planning attorney who is well prepared to help you craft a plan that supports your goals and minimizes the chance of future disputes.
Your estate plan is a powerful expression of your values and your lasting support for loved ones. To learn how we can help, contact us or call us at 254-781-4222 and schedule your free consultation today.