Last updated on October 31st, 2018
Avoiding Family Disputes
Planning your estate isn’t just business–it’s personal. You’re carefully deciding who receives your estate, while also fairly accounting for those closest to you.
However, avoiding family disputes in estate planning can be a challenge.
Knowing how to avoid disputes among your family members and your named beneficiaries begins with knowing which common disputes arise, and how to avoid each one.
Here are a few common family disputes, and the ways you can plan ahead to avoid them.
One of the most common areas of strife comes from the disinheritance of a family member. Whether it’s a child or a close sibling, your decision to disinherit is risky once your estate goes into probate.
You may disinherit one child to leave everything to another who needs it more, or perhaps you are estranged from the family member you are disinheriting. Whatever the case, it is useful to explain your decision to disinherit in your estate documents. Doing this gives your family an explanation of your decisions, while noting that your decision is intentional and of sound mind.
Keep in mind that your disinherited family member can contest your will to receive part of the estate. This means that the terms of your estate distribution can be changed.
Drafting your estate documents allows you to leave specific items of your estate to specific beneficiaries.
However, if you name only a few of your children to receive particular items of your estate, and make no mention of your remaining children who you are intending to inherit the remainder of the estate, the court may assume that you are not leaving anything to them.
You must name all of your children as beneficiaries if you intend for them to inherit. The court will not assume that the remaining estate should go to the remaining unnamed children.
To ensure you are not unintentionally disinheriting a family member, you must explicitly name each of your intended beneficiaries in your estate documents.
Even when drafting a residuary clause that states the residuary of your state should be divided among your children, it can still be good practice to name each individual.
Your estate plan is flexible to the perceived needs of your family. If you feel that one of your children needs more of your estate than another, you may indicate those wishes in your estate documents.
However, as with disinheritance, you will need to explicitly name which of your beneficiaries are receiving which assets. If you name one of your children to receive a larger sum, but do not name the other, the remainder will be reabsorbed by the estate. Therefore, your remaining child’s inheritance is distributed to your other beneficiaries.
Again, it is often beneficial to explain your decisions in your estate documents so as to avoid conflict. If one of your children has a special need that will require life-long care, and you decide to leave most or all of your estate to that child’s care, explaining your reasoning will likely prevent unnecessary upset.
Co-Trustees, Co-Executors, and Co-Beneficiaries
When you are naming your trustee, the executor of your estate, or your beneficiaries, you will want to consider the risks of assigning co-ownership to your estate property. Assigning co-ownership to beneficiary inheritances is not always the best way to distribute property.
If the partnership doesn’t agree on the management of the property, conflict will ensue. To be sure you are not creating conflict, you can name a single trustee or executor, or a single beneficiary for a single piece of property.
After naming your primary choices, name your alternates. An alternate is someone who will inherit that part of your estate in the event that your primary disclaims or dies before accepting the inheritance.
As you age, you may find that you are being looked after by others more frequently. Whether by your children, a caretaker, a niece, or a cousin, the issue of undue influence in estate inheritance is a common issue.
This happens when you decide to leave part, most, or all of your estate to the person or people who care for you. While you might intend to leave your estate to them as a thank you, your family might feel snubbed by it.
Knowing how your family would feel about you leaving part of your estate to someone like a caretaker can help you to assess whether or not it’s the right thing for you.
Additionally, you need to ensure that you are making the decision to name your caretakers without being influenced or pushed into doing so. You will need to sign a self proving affidavit in order to validate that your decision is being made willfully, and under sound mind.
Children from a previous marriage are eligible to receive an inheritance from your estate, but only if you explicitly name them.
However, it is easy for conflict to arise when leaving an unequal amount of your estate to your children because you have decided to leave more or all of your estate to a child from a previous marriage.
Again, explaining your estate division in your estate documents is often extremely helpful in defusing these situations.
Stipulations of a Will or Trust
You are able to leave your estate to whomever you wish, just as you are able to place your own restrictions and requirements on the estate property.
You can dictate who gets what, as well as who has access to the property, whether they can live there, receive income from the property, rent or sell the property, and just about anything else you could want to cover.
There are some restrictions that are not allowed, such as a restriction based on the beneficiary’s marriage. For example, you cannot state that the beneficiary is only to receive the estate if they seek a divorce.
You are only able to place restrictions on the property’s management. You can, however, restrict the age of your beneficiary’s inheritance, if necessary. For example, you can stipulate that a beneficiary receive their inheritance after a marked age, if you feel that they would poorly manage it in their youth.
Stipulations must be a part of your estate documents. If you set stipulations on age or how the property should be managed, explain your stipulations. Whether you want the house rented to bar your beneficiaries from selling it, or you grant them free access to the property, your decisions may raise questions and spark conflict.
Account for it in advance by discussing your financial and personal decisions in your estate documents.
Naming who will take care of your minor children and their inherited estate is an important aspect of your estate plan. You will need to name someone dependable, responsible, able, and willing.
This is a position you need to discuss with your family before making any decisions. Taking care of minor children is a big deal, and the person you are naming needs to be aware of the responsibilities that it will entail.
While you are able to name whomever you see fit, it is important that your named guardian has prior knowledge of their position in your estate plan. Inheriting children is stressful, and can be made more-so if the guardian chooses to disclaim their guardianship.
Be sure you are avoiding conflict among your family members by appointing someone who is willing to take on and is understanding of the position.
You don’t want your family fighting over who receives your children, and more importantly, you don’t want to leave your children to the care of someone who doesn’t want them.
Avoiding Conflict During the Probate Process
If you’ve decided on an estate plan, you can formalize it in a will. This will allow your estate to pass through the Virginia probate process, which will give your beneficiaries the time to sort out how they feel about your decisions.
If conflict should arise from your estate plan, the probate court may intervene to settle it. The probate process is tedious, but it can be useful for defusing and settling family conflicts.
Clients often ask us if there is a way to protect their wishes after their death. Your inclusion of a no-contest clause in your will provides your beneficiaries the opportunity to contest your will while protecting your overall estate plan.
If a beneficiary chooses to contest the terms of your will, they may. However, they are forfeiting all rights to their initial inheritance if they are unsuccessful in contesting the will.
The no-contest clause is meant to dissuade your beneficiaries from contesting your wishes without banning them from doing so.
The most important part of naming your trustee, executor, beneficiaries, or child guardian is to speak with those individuals first.
You are not required to divulge all of the details of your estate plan, but providing notification can help prevent conflict. Giving those individuals prior knowledge of their legal responsibilities, should they choose to accept them, is essential.
Advanced discussion of these topics and issues are an important part of avoiding family conflict.
Estate planning is intricate work that requires personal and financial preparation. You want to make sure you are planning ahead with the needs of your family in mind. To ensure you are making the best decisions for your estate and your family, schedule a consultation with our estate planning attorney.