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How to create an estate plan that avoids conflict.

On Behalf of | Jul 31, 2017 | Estate Planning

Developing an estate plan can be an emotionally charged time, as one puts their assets into perspective and determines how to pass all they have accumulated in life to their heirs. As a parent developing an estate plan, many express their concern about the conflict that may occur among their children after they die. Even the families that get along “best” often have troubled moments working through a parent’s probate administration.  As an estate planning attorney, I offer five pieces of advice to try and minimize the conflict that can occur after a parent’s death.

1.  Name an executor who you trust to carry out your wishes, (and, name a standby executor who you trust just as much).  The executor of your will is responsible for collecting your assets, paying the bills of the estate, working through the probate process, and distributing your assets to those designated in your will.  Consider how your children communicate with each other and determine if naming one of them will allow your estate to be handled seamlessly, or if it will cause strife among the siblings.  If you don’t believe that naming one of your children as executor will allow your estate to be managed without conflict, consider naming another family member or a friend as the executor in order to remove the conflict that can occur if only one child is named.  Be sure to name a standby just in case your primary named executor is unwilling or unable to act; otherwise, the court will name a person to become executor, and it may not be the person you would have wanted.

2.  Have a conversation about what designations are in your will early on in order to prevent surprises and conflict during probate.  Disappointment in how an estate is divided is a leading cause of friction among heirs and can be a catalyst for estate litigation.  Often times, parents do not communicate the distribution of their estate to their children during their lifetime, and therefore these designations come as a surprise to children and other beneficiaries after the parent has passed.  Without the opportunity to have these important conversations, the designations in your will can, and often do, greatly differ from what the beneficiaries may have thought would happen at the time of their parent’s passing.  This can lead to frustration and stress among your heirs.  Having a conversation about how your estate will be distributed well before your passing can provide time for your heirs to process and understand how your estate will be divided, ask questions about why you decided a particular way, and eliminate the surprise during the probate process.

3. Be careful when disinheriting a child.  Parents can choose to disinherit their child(ren) for many reasons, and it is perfectly legal to do so in most states.  Whether it is due to children’s financial mismanagement, drug or alcohol problems, or even the child’s independent wealth, it can be devastating to the child to discover that they have been left out of the will.  However, if you choose to do so, it is important to ensure that you have clearly disinherited the child using the appropriate language in your will.  It is also important, when possible, to have a conversation with that child about your plans.  If there has been a divide between the parent and the child such that a conversation isn’t feasible, it may be wise to talk to your estate planning attorney about other options in your estate plan regarding that child that may reduce the shock of being disinherited and therefore reduce the chance of your estate being opened up to litigation.

4.  Don’t just ignore your estate planning because you think it will cause conflict in your family.  When a person passes without a will, the state decides how your estate is divided according to their particular intestacy laws.  This means that your estate may wind up being divided in a way completely contrary to what you would have wanted.  Furthermore, you leave your children to sort out the estate amongst themselves, which could cause an intense amount of conflict that could have been minimized through a properly developed estate plan.

5. Remember that YOUR estate plan is exactly that: YOURS.  As hard as it can be to know that one (or more) of your children may not be happy with what the outcome will be with regard to your estate after you pass, you are the one who makes the decisions about your estate plan.  Don’t succumb to anyone else’s ideas about what you should do with all that you have accumulated in your life.  Plan in the way that you feel most comfortable dividing your assets. Discuss with those you love what that plan is, and know that even though it may be difficult for your children, planning now is always more beneficial than having no plan at all.