How to Keep Your Family IN COURT and IN CONFLICT
PROBATE: COST YOUR LOVED ONES UNNECESSARY TIME, MONEY & STRESS
Have you ever seen or been in a family feud that formed after a loved one passed away? How about a probate that took years to complete and after all was said and done, didn’t even completely transfer all of the assets of the decedent (i.e. the person that died)?
If so, then you understand why everyone needs an estate plan. Think of all the time, money, and stress that went into settling the decedent’s affairs after they were gone.
Now, imagine if you could’ve avoided all of that entirely.
Imagine having your loved one’s affairs settled relatively quickly, without unnecessary fees being paid to cover the costs of a probate attorney, a professional fiduciary, bond premiums, and court filings. And without having to deal with convoluted legal proceedings while you are mourning the loss of a loved one.
Odds are, you’d choose to avoid spending that time & money and dealing with the stress entirely if it were an option.
What’s more, if you had the opportunity (and you do), to keep your family out of court and out of conflict after you’re gone, you’d definitely take it.
But I can’t speak for everyone, I don’t know everyone’s intentions, and I can’t force everyone to take my advice. As the saying goes, you can lead a horse to water but can’t make it drink.
If, for some reason, you want to make sure your family spends unnecessary time, money, and stress fighting with each other and going to court, here what you should do:
DO NOTHING.
The most surefire way to guarantee your loved ones will end up in court and in conflict is to do nothing.
What About Beneficiary Designations?
Don’t fill out your Beneficiary Designations, or better (worse?) yet, fill them out once, name someone like your current boyfriend or girlfriend as the primary and sole beneficiary, break up with him or her, and then don’t update the Beneficiary Designation ever again.
What About Trusts?
Don’t have a trust of any kind: a land trust, revocable trust, or irrevocable trust, doesn’t matter. Trusts AVOID probate and can settle your affairs privately. No probate means no court.
What About Wills?
Maybe have a Will, but ONLY a Will. Despite popular belief, Wills DO NOT AVOID probate. A will is, in essence, a list of instructions to the court on how to distribute your assets. How does the court know what the will says? It gets filed as part of the probate process.
What About a Power of Attorney?
Don’t have a Durable Power of Attorney. A durable power of attorney can make sure your loved ones have access to your bank accounts or make other legal & financial decisions for you if you become incapacitated and can’t take care of yourself or your responsibilities.
If you don’t have a Durable Power of Attorney, your loved ones will have to go to court and establish a guardianship over you to access those same accounts and make those same legal & financial decisions.
What About a Healthcare Advance Directive?
Don’t have a Healthcare Advance Directive. A Healthcare Advance Directive allows you to decide two incredibly important and personal questions ahead of time with two distinct documents:
A Living Will, which answers when you want to stop receiving life-sustaining medical care if you’re incapacitated.
A Designation of Healthcare Surrogate, which answers who should be allowed to make medical decisions on your behalf if you’re incapacitated.
If you don’t have a Healthcare Advance Directive, your loved ones will have to make these decisions themselves.
While they may be able to rely on your attending physician’s opinion to make medical decisions for you, they can’t know when you’d want to stop receiving life-sustaining medical care if you don’t tell them ahead of time.
Without knowing what you want, if someone comes forward and makes the decisions to end your life-sustaining care, there’s a good chance they’ll feel responsible for your passing because they didn’t know for certain. Worse yet, other family members may hold your passing against them because they didn’t agree with the decision.
DON'T TELL ANYONE ANYTHING.
Don't Tell Anyone About Your Estate Plan.
If you have some of the aforementioned documents, one way to make sure they are ineffective is to keep everyone in the dark about them. If you don’t tell your loved ones about these documents, how would they know these documents exist? If they don’t find these documents, they’ll have to go to probate court and proceed as if you did nothing (see above.)
That doesn’t mean they aren’t going to wonder if you had an estate plan, they definitely will. And even if they didn’t, it’d be one of the first questions a probate lawyer asks them when they reach out to one.
And even if they do find your estate planning documents, there’s still opportunities for court & conflict.
Don't Tell Your Fiduciaries About Their Resposibilities & Appointment Ahead of Time.
For example, if your fiduciaries, like your personal representative, successor trustee, agent, or surrogate (i.e. the people you chose to handle your affairs and make decisions for you) don’t know of their role & responsibilities before something happens to you, they may be caught off guard by the appointment and may agree to do it, but be overwhelmed by what it requires, or they may flat out refuse to do it.
Refusing a fiduciary appointment can be seen as disrespectful or selfish, especially if you haven’t named a backup and your loved ones now have to go to court to get someone else appointed.
Don't Tell Anyone What You Own.
Once a fiduciary does get appointed, if you haven’t told anyone what you own and how to find it or don’t leave an inventory detailing this information, there’s a good chance your fiduciary won’t be able to figure it out.
This increases the amount of time needed to complete the probate process. And it can also take bank accounts, retirement accounts, and other property only you know about out of your heirs’ inheritance and put them into the hands of the government.
DON'T MAKE YOUR INTENTIONS CLEAR.
Okay, let’s say your loved ones have found your estate planning documents and have gotten a fiduciary appointed. That’s it, right? No further potential for court & conflict?
Wrong.
If you don’t make your intentions clear, you open the door for people to challenge your decisions.
For example, let’s say you refer to your current partner as your spouse and truly consider them to be so, but you are separated from and still legally married to someone else.
Who should receive what you leave to “your spouse?”
Another example, let’s say you and one of your children had a falling out that led to this child being disowned. You haven’t spoken to each other in years and don’t know anything about their life.
Should this disowned child later be allowed to take an equal part of “your children’s” inheritance?
Final example, let’s say one of your children has passed away before you. But your child has children of their own, i.e. your grandchildren.
Do you want your grandchildren left out of the will just because their parent died?
What you meant might be clear to you, but a court of law could decide otherwise.
And it’s that opportunity for a different decision that could drag your family into court & conflict if your intentions aren’t clear and someone is unhappy with what you did or didn’t leave them.
Prevent Probate with TealAcre
I'll be honest with you, this article is a bit tongue in cheek. As an attorney in this practice area, it's my job to encourage people to make enformed and empowered decision about their estate planning.
If you've had a change of heart and would NOT like to keep your family in court and conflict, reach out to TealAcre. Through the Composite Legacy Strategy Session process, you can get a bespoke plan that makes sure your wishes are honored and spares your loved ones time, money, and stress that's associated with probate. To contact us you can:
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