When a loved one dies, emotions are bound to get involved, but many times, these high emotions can lead to some major problems for family members of that person. However, proper estate planning can help alleviate some of these issues before they even start.
While disputes between family members can happen even if the deceased had a will or trust, certain steps can be taken to head them off at the pass.
What Are the Challenges?
If the deceased leaves a large enough estate, family members are sure to argue over who gets what and how much each individual receives of the estate. Many times, parents may financially support one child over the other children, and that support can often create resentment between siblings.
Even with a will or trust, when the division of assets is clear, the children of the deceased can still argue over who receives property from their deceased parent. If the deceased parent also leaves the home to more than one person, it can be complicated if one of the children wants to live in the home while the others want to sell it and split the proceeds.
If the deceased remarried and has a blended family, conflicts often come up between the children left. It is also a common occurrence for individuals to remarry and not update their estate plans to account for these new changes, only to lead to challenges down the road. For instance, the deceased may have left the ex-spouse as the main beneficiary only to later remarry and not change the beneficiary designation to his or her new spouse.
In these situations, the wishes of the testator govern, which are the wishes left in his or her last will and testament. Arguably court challenges will result in these types of situations, and it is best that the testator periodically review his or her plan to make sure the estate plan matches the testator’s current life circumstances.
Properly Constructing a Will or Trust
While it may not always be a possibility to completely eliminate family disputes regarding the deceased’s estate, a properly constructed will or trust can help make the testator’s wishes completely clear in the event a probate judge needs to make a ruling between parties.
The will details how the testator wishes his or her estate to be handled at the time of his or her death. The court will look to the will for the person’s expressed wishes on how he or she wants his or her property handled.
If the testator wishes to avoid having to make his or her loved ones go through the probate process, a revocable trust may be the best avenue. A revocable trust is a document that allows the grantor or the individual creating the document to protect his or her assets during the grantor’s lifetime but also plan for what will happen to the assets in the future upon the grantor’s death.
All of this can be accomplished without going through the probate process. In a trust, it is the trustee who will oversee the division of assets upon the grantor’s death. If a trust is properly prepared, the instructions within the document will alleviate any disputes that may come up between beneficiaries. Just like a will, the trust’s written instructions will serve as clear instruction on what the grantor intended to have done with his or her assets.
Probate disputes do not only involve what happens to the assets of the deceased. Many times, family members will argue over what will happen to their loved one if they are sick and require long-term care.
A proper estate plan will not only include a will or trust, but it will also include a legal power of attorney and medical directives. If the individual is in poor health and can no longer make decisions on his or her behalf, many times the spouse will be the one to make these decisions, although it should not be assumed that this is the case.
If there is no spouse but multiple children, who is the person who makes the decisions regarding mom or dad’s health? If the parents have advanced directives in place, it will be clear who will be the one speaking on the parent’s behalf when it comes to medical decisions.
Also, an estate plan needs to have clear directions when it comes to whether the parent wants to be kept indefinitely on life support for the long term with no chance of recovery. A do not resuscitate document will be needed so that the person’s wishes are made clearly and cannot be disputed.
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If you are not sure you need an attorney, you can always come in for a consultation to discuss your situation. Please contact our office if you, or someone you know, has recently been appointed personal representative of a loved one’s estate and has questions about what to do next.