Wills and Inheritance disputes among families
A family dispute resulting from an unclear or unknown will provision is among the more challenging of issues.
How to avoid them?
How to resolve by mediation (short of litigation)?
Unrealistic expectations through litigation?
1. How to avoid family disputes over wills and inheritances:
a. The "family meeting" at the time of drawing up the estate plan.
Obviously, the best time to disclose assets, liabilities and how these will be transferred, distributed or sold for distribution purposes is when preparing the basic estate plan.
Even a very basic estate plan should include a will, a health care proxy, a durable power of attorney and a living will (advance medical directive). Add on could be trusts to avoid the probate court, more complex trusts to attempt to minimize estate tax and Masshealth trusts to attempt to minimize Masshealth claims should they arise. Further, a full discussion of non probate assets which pass to the beneficiary or joint owner is required.
If the parents and children are all aware of the situation and are even part of the discussion if the parents allow this then there are no surprises and better planning is possible.
b. Notice to children, etc. upon drawing up of the documents:
Even if the parents do not involve the children in the drawing up of the documents, it goes a long way to let them all know of the plans. Not letting the children know of the plans of the parents opens up problems and unintended consequences. Many people who have documents prepared such as trust never transfer the assets to them. Many parents who have documents prepared do not understand that a bank account in joint name with one child will not pass to the other child, etc.
Parents who do not leave assets equally to children need to especially plan for the inevitable questions, complaints, hard feelings, and disappointment of the child left out.
2. Using mediation to resolve disputes:
Most children and families after death are not able to calmly and logically discuss the situation without a third party.
Hire a trained mediator will meet with the parties together and separate as necessary to identify the issues, help the parties generate options and choose the best ways to move to the solution that works best under the circumstances.
This can take place in a comfortable office with comfortable seats.
3. Litigate it:
As an alternative, each party may hire a lawyer, and start a litigation process that will usually take a year or two, cost tens of thousands and likely get resolved through some sort of court suggested mediation anyway. Probate courts are not nice places, litigation is emotionally unhealthy, and the result will likely end a lifetime of good family relations. You will not get that "I just need 10 minutes to explain it to the judge" moment. It is a long hard road to get in front of a judge for trial in the probate court system.
If you find yourself in this more common than you think situation, please take the above thought to heart.
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