Your estate plan helps set the terms of your legacy, but you can’t always anticipate how your family will react after your death. High emotions, grief, and strained relationships between different relatives can sometimes, taken together, culminate in feuding and fighting. If an heir isn’t happy with their inheritance and decides to sue, their challenge, even if filed in bad faith, could cause other heirs to lose out. The only options your family will have to settle their differences will be the estate plan that you left behind and, possibly, the input of a probate court.
You can’t control the future, but you don’t have to settle for uncertainty, either. Ross & Shoalmire, Elder Law Attorneys, has spent years helping families on both sides of the Texarkana border secure their legacies. Our experienced team of Estate Planning Lawyers knows what it takes to make a rock-solid estate plan—and we have the results to prove it. Please contact us today to speak to an attorney and schedule your initial consultation.
If You Anticipate Conflict, You Need an Estate Plan
Estate planning lawyers often talk to clients from very different backgrounds and with very different needs. However, most people still have the same basic motivation: a desire to provide for their loved ones and to prevent the possibility of inheritances being seized by creditors or lost in court. Though we can’t always know if and when conflict may arise, some family dynamics signal a more immediate need for a strong estate plan.
Take the following examples:
- Blended families. If stepchildren, stepparents, or stepsiblings don’t have rock-solid relationships, they may reach very different conclusions about who deserves a fair inheritance.
- Estrangement. Longstanding tensions between certain family members could erupt during probate or trust administration, raising the risk of an estate lawsuit.
- Unequal inheritances. People have many reasons for leaving unequal inheritances. Unfortunately, even if your reasoning is sound, apparent discrepancies can make probate a long and unpleasant process for everyone involved.
- Ambiguity. You don’t need to fulfill many requirements to write a will in Texas and Arkansas, but you do need to go over your documents with a fine-toothed comb to ensure there’s no room for anyone to second-guess your wishes. If your estate plan contains ambiguous terms, it could have serious consequences.
For what it’s worth, conflict can and often does arise between family members with strong relationships. Sometimes, conflict isn’t intentional, and it may not even be obvious. Let’s say, for instance, that you own your home in joint tenancy with your spouse. If one of you dies, the other inherits the house. It sounds simple, but it can become complicated if your spouse doesn’t have an estate plan of their own. Instead of your home going to an adult child who’s started a family of their own, a probate court might say that, under Texas or Arkansas intestacy statutes, shares of the property have to be distributed among multiple other heirs.
3 Big Reasons Your Estate Could Be Contested in Probate
In Texas and Arkansas, anyone who is considered an “interested party” with respect to an active trust or a pending probate case will have a chance to air the objections via legal action. This doesn’t mean that any friend, relative, or creditor can come knocking on your executor’s door. Instead, it indicates that any lawsuit—even one that doesn’t make much legal sense—could keep your estate entangled in court for far longer than expected, losing money all the while.
Although people file probate contests for a wide range of reasons, the most common arguments fall into several distinct categories. These common arguments by no means constitute an exhaustive list, but they can be dangerous if legally sound:
1. A Close Relative is Excluded
If you disinherit a relative, it means that you are taking away an inheritance that they would have otherwise been entitled to claim. This could occur if you strike an heir from your will, or if you simply never include an estranged child in your estate plan.
Texas and Arkansas, for instance, both have what are termed “pretermitted child” statutes. Pretermitted child statutes provide a means for disinherited children to argue that their exclusion from your will was a mere accident rather than an intentional decision—and the law may well be on their side, no matter what proof your other relatives have to offer.
2. Your Family Has Questions About Validity
One of the first steps in the probate process involves the executor going to the county probate clerk and submitting a copy of the deceased person’s last will and testament. In most cases, the probate court will only recognize a will if it is proven valid. This could be done by:
- Including a self-proving affidavit in your will
- Bringing in witnesses who saw you sign your will
- Writing the will in your own hand and signing it
- Having an attorney write your will and asking witnesses to attest to its validity
If you miss any of these steps, your executor may not be able to validate your will. And, if this happens, your estate will most likely be forced into intestate succession, where the court decides which of your heirs deserve and inheritance and which don’t.
3. Somebody Suspects Undue Influence
Undue influence occurs when one person coerces another into writing a will or making changes to it that they would not have authorized had they not been subjected to some form of threat, control, or intimidation. Proving undue influence can be very difficult for heirs, but even if a lawsuit falls flat, your estate will still be responsible for its own legal costs. This means that legal costs and document fees are borne by your estate.
4. Your Last-Minute Estate Plan is Second-Guessed
You typically need to be an adult and “of sound mind” to legally execute a will.
For better and for worse, though, the definition of “sound mind” can be a little ambiguous. If a relative believes that cognitive decline or physical capacity rendered you unable to make informed decisions about your estate plan, they could argue that your judgment was too compromised to be trusted. Should the court believe them, your entire estate plan could be discarded.
5. Your Heirs Don’t Trust Your Executor or Successor Trustee
Your choice of executor is important. After all, the executor is the person responsible for initiating, overseeing, and concluding probate. They’re involved in almost every step of the process and very often have no choice but to take a hands-on approach to succession. This can lead to a great deal of stress, sometimes culminating in poor decision-making.
If a child or relative thinks that your executor is incompetent or outright malicious, they may be able to have them removed from their position by filing a lawsuit. The same general principle applies to successor trustees, who have a fiduciary duty to the trust and cannot play favorites with beneficiaries or pay more than their state’s laws allow.
Estate Planning Strategies to Limit Family Conflict During Succession
You may not be able to see the future or plan for every possibility, but Ross & Shoalmire, Elder Law Attorneys, could help you create an estate plan that is free from errors and strong enough to stand up to feuding, in-fighting, and creditor claims.
However, there is no one-size-fits-all solution for estate planning: different people have different needs, which vary along with their financial status, the complexity of their assets, and their family dynamics.
If you aren’t sure where to start, our experienced team of Texarkana Estate Planning Lawyers could talk through the options that work best for you—not for our other clients, not for other people, but for you specifically. During your initial, no-obligation consultation, you’ll have a chance to share your concerns, explain your needs, and ask questions about different types of estate planning strategies. Some of the most topics that arise during consultations include:
Last Wills and Testaments
A last will and testament is the only way to keep your estate safe from intestate succession. Furthermore, a will can do a lot more than assign different assets to different beneficiaries. It can also let you nominate a guardian for your minor child, detail your burial arrangements, and explain why you have made the decisions that you have.
Living wills and Advance Care Directives
You can use a living will or advance care directive to nominate a special “health care proxy” who can make medical decisions on your behalf should you ever become incapacitated. You can also set firm boundaries for treatment, telling relatives how long they should keep you on life support and letting your health care proxy know if there are certain treatments to which you object.
Trusts
Trusts let you keep assets out of probate and can, in some cases, help protect your beneficiaries from creditor claims and other liabilities.
Trusts come in different shapes and sizes, with some allowing more lifetime flexibility than others. Revocable living trusts, for instance, can be changed at any time—but they don’t offer failproof protection against third-party claims. Irrevocable trusts, on the other hand, can’t be easily changed or altered, but they can virtually guarantee that nobody can touch your trust assets but your trustee.
Alternative Solutions to Inheritance Conflicts
You may not have to take a radical approach to resolving inheritance discrepancies.
Oftentimes, all it takes to avoid conflict is talking to your heirs while you are still alive, both to explain your position and to understand their needs. This can be difficult to do, but it can make a world of difference in probate. If that isn’t an option, or a discrepancy has less to do with a poor relationship than the sorts of assets you own, you may be able to make an alternative arrangement, using an irrevocable life insurance trust (ILIT) or other vehicle to make sure that nobody feels left out.
