About the author : Craig Andreoli

Litigation in probate court may include will and trust contests, and disputes over family-owned real property. The most successful way to mitigate or avoid probate litigation risk is to carefully plan for the future. Comprehensive estate plans that are routinely updated, careful consideration and documentation of gifts, and protective measures in the event of incapacity contribute to a challenge-free transfer of your estate assets to your heirs upon your passing.

Avoiding Probate with Trusts

A great way to avoid probate litigation is with a revocable living trust that permits you to title assets into the trust and manage those assets until your death. Years of managing your assets within this type of trust prove that you handled your finances and property exactly as you intended if a contest is brought before a probate judge. Your competent management greatly reduces the risk of litigation as it demonstrates your mental capacity and financial management capability.

Common Causes for Contesting a Will in Probate

Gift-giving and real estate transfers to your children during your lifetime may open the doors for litigation after you are gone, particularly if these transfers have complex provisions and varying percentages. For example, dividing ownership of the family cabin, giving one child eighty percent and the other twenty. The unequal transfer of property or gifts often leads to children feeling the circumstances are unfair. Your adult children may not properly interpret your underlying future intent.

The same holds true for personal gifts like jewelry, baseball cards, or art collections. A mother may promise the inheritance of a gift, like a special piece of jewelry, but she may be inviting future probate litigation for her children if it was not detailed in a signed document. Gift promises and real estate transfers often lead to disputes between siblings, leading to probate litigation.

Ensuring Your Wishes are Followed When You’ve Become Incapacitated

Incapacity can be a challenging topic for a family to work through. Anyone at any age can become incapacitated by a sudden illness or accident. The thought of relinquishing financial and health care decisions to adult children or other family members can be unsettling. But nominating an agent to handle your financial matters in a durable power of attorney document and an agent to handle your medical matters in a health care proxy document while you have sound decision-making capacity and autonomy, can help avoid future litigation between family members.

You can still make your own health care decisions even with a health care proxy document in place, but the agent you selected in that document can only make medical decisions on your behalf once a doctor deems you physically or mentally incapacitated. In contrast, you can still make your own financial decisions even with a durable power of attorney document in place, but the agent you selected in that document is given decision-making powers over your finances when his/her signature hits the document. An estate planning attorney helps you identify the criteria to consider for your specific needs when making decisions for this crucial role. Select both of these agents well in advance of the unforeseen events that will require their help.

Planning Ahead

Establish your wills and trusts early on as they are vehicles to control and communicate your wishes for the distribution of your personal and real property to your heirs. Your will protects your family from intestate statutes or laws that govern how your estate gets distributed when you die without a will. Your will nominates a personal representative, called an Executor, to oversee your estate, pay outstanding debts and final taxes, and disperse your remaining assets.

Know that in New York stepchildren are not considered as part of an inheritable estate, with few exceptions, without a will that specifically includes them.

To avoid probate litigation, your will and the naming of financial and medical agents in durable powers of attorney and health care proxies, respectively, are crucial estate planning elements. To guard against litigation more fully, a revocable trust avoids court oversight altogether except in the case of a challenge. However, if you have been competently overseeing the revocable trust, this presents a formidable challenge to a trust contest.

Contact us to learn more about how a will, durable power of attorney, health care proxy, and trust complement each other to provide a strong defense against probate litigation. Our probate and estate planning attorneys will ensure that the provisions in all those documents are unambiguous, increasing the probability of avoiding potential future litigation. Please contact us today at (631) 686-6500 to schedule a consultation to discuss your your estate plan. We look forward to the opportunity to work with you.

About the author : Craig Andreoli