The fact of the matter is that family members end up fighting one another over inheritance issues or a life-saving medical treatment all the time, as much as people don’t want to believe it. It’s impossible to know precisely how your loved ones will behave when you die or become incapacitated. Even if you think you know them, your death or incapacity will be a major stressor that causes tension.
Some family dynamics are prone to conflict even in the best of times, and when tragedy strikes even minor conflicts and disagreements can be ignited beyond their normal flare ups. Adding money, sentimental items, furniture, and other treasured assets into the equation can exponentially increase your family’s potential for discord. Ultimately, these divisions in your loved one’s relationships can be the costliest drain after the death or incapacity of someone close to them.
However, you can take steps to avoid this bleak outcome for your family by working with an experienced Wills and Trusts planning lawyer. We, your Personal Family Lawyer®, understand and thus are able to anticipate these impending dynamics. Allowing us to create your Will and Trust rather than relying on do-it-yourself Wills and Trusts planning documents ensures that when you protect your family from inward division, you can do so efficiently and effectively. After all, even the most intricate documents will be unable to anticipate and navigate your family’s particular situation and their complex emotions – but we can.
The first step to preserving your family’s harmony is educating yourself on some of the leading causes of conflict over Wills and Trusts. After that, you will be in a much better position to anticipate and prevent these situations properly through. Now, while it is impossible to perfectly predict how your loved ones will react to your Will and Trust, the following issues are among the most common catalysts of conflict for you to keep an eye on.
Poor Fiduciary Selection
Choosing the correct person for the correct role in your Will and Trust is a key part of avoiding conflict. Many Wills and Trusts planning disputes occur because the person chosen to oversee and handle your affairs after your death or in your incapacity fail to properly carry out the responsibilities entrusted to them. Roles such as your power of attorney agent, executor, and trustee all entail a variety of different duties, some of which can last for years.
When you choose someone for a role, they become a fiduciary, and are legally required to execute the duties associated with their role while acting in the best interests of the beneficiaries you have named in your plan. The failure to do either of those responsibilities is referred to as a breach of fiduciary duty.
Whether caused by the fiduciary’s deliberate action or by their unintentional mistake, a breach – or even the perception of one – can cause real and understandable conflict. In the case that the fiduciary attempts to use their position for personal gain or if their improper actions negatively impact your beneficiaries, your loved ones will be especially troubled.
Commonly, breaches occur when a fiduciary fails to provide required accounting and tax information to beneficiaries, use estate or trust assets improperly for the fiduciary’s personal gain, implementing incorrect distributions, and failing to pay taxes, debts, and expenses owed by the estate or trust.
Beneficiaries can sue to a have a fiduciary suspected to be in breach of their responsibility removed. They can also sue to recover any damages they incurred, and even recover punitive damages in the case of a breach being committed out of malice or fraud.
Solution: With all of this being said, you can see that fiduciaries play key roles in ensuring your family keeps out of conflict, so choosing your fiduciaries with extreme care and after much thought. Additionally, making sure that everyone in your family knows who and why you choose the people that you name and confirming that your chosen fiduciary knows how to successfully fulfill their role will further help keep the peace. You should only choose honest, trustworthy, and diligent individuals, and individuals who are unlikely to have potential conflicts of interests with your beneficiaries.
Also, being clear and setting up explicit terms that spell out a fiduciary’s responsibilities ad duties within your Will and Trust helps the individual know exactly what you expect from them. You can even add terms to your plan that would enable beneficiaries to remove and replace a fiduciary without going to court, should the need arise.
As your Personal Family Lawyer®, we can assist you with selecting the most qualified fiduciaries; drafting the most precise, explicit, and understandable terms in all of your planning documents; as well as ensuring that your family understands your choices, so they do not end up in conflict when it’s too late. In this way, the individuals you select to carry out your wishes will have the best chances of doing so successfully—and with as little conflict as possible.
Contesting the Validity of Wills and Trusts
There are several reasons why the validity of your will and/or trust can be contested in court. If your will and/or trust is successfully contested in court, the court declares that your plans are invalid, rendering them useless and ineffective – they might as well have never been written. This very well could be disastrous to everyone involved, including and especially for your intended beneficiaries.
Now, not just anyone can be eligible to contest your will or trust in court. Just because someone disagrees with it does not give them the right to legally protest it – in fact, whether or not the individual agrees with the terms of your plan is completely irrelevant, as the plan is yours, not theirs. Rather, they must prove that your plan is invalid based on one or more of the following legal grounds:
- The document was improperly executed (signed, witnessed, and/or notarized) as required by state law.
- You did not have the necessary mental capacity at the time you created the document to understand what you were doing.
- Someone unduly influenced or coerced you into creating or changing the document.
- The document was procured by fraud.
Additionally, only individuals with “legal standing” can contest your will or trust. There are two types of people who can have legal standing: 1) family members who would inherit—or inherit more—under state law if you never created the document, and 2) beneficiaries (family, friends, and charities) named or given a larger bequest in a previous version of the document. Outside of this, even if someone was intimately involved in your life and/or were blood related, they would not have the grounds to legally contest your plan.
Solution: It is important to note that there are times when family members might contest your will and/or trust over legitimate concerns. If they believed that you were tricked or coerced into changing your plan by an unscrupulous caregiver, for example. That is not what we are addressing here.
What we are addressing – and looking to prevent – are contests that are nothing more than a disgruntled or would-be family members/beneficiaries seeking to increase the benefit they will receive through your plan. Additionally, we are looking to prevent contest that arise from the disputes between the members of blended families, particularly those all to frequent disputes between spouses and children from a previous relationship.
To begin with, when you have a loved one who is unhappy or may become unhappy with how they are treated in your plan, it is critically important to work with an experienced Wills and Trusts planning lawyer like us. This is especially true if you are seeking to disinherit or favor one member of your family over another.
There are many reasons why people become unhappy with their portion of the inheritance. Having a plan that benefits some children more than others, or having a plan that benefits friends, unmarried domestic partners, or other individuals instead of, or in addition to, your family are all leading causes of unhappiness. Similarly, when you name a third-party trustee to manage an adult beneficiary’s inheritance so that they cannot be negatively affected by the sudden windfall, you can also leave room for conflict to brew.
In these kinds of situations, it is vital to give these individuals no legal ground to contest your will and/or trust by making sure your plan is properly created and maintained. Including clear language that states on no uncertain terms that you are making the choices laid out in your plan of your own free will is one way to ensure that no one will be able to challenge your wishes by claiming that you were incapacitated or under duress when you wrote the plan.
Going beyond your plan, it is also critical that you clearly communicate your intentions to everyone who will be affected by your will or trust while you are still alive. In fact, we often recommend having a family meeting to go over everything with all impacted parties so they can learn what to expect after you are no longer around. We can help facilitate such meetings to ensure that there are minimal ruffled feathers.
Blended Families Increase Likelihood for Conflict
If you are in a second (or more) marriage, and/or have children from a previous relationship, your children and spouses can often have conflicting interests, which lead to conflicts you need to take seriously and consider the best way to deescalate or defuse.
Solution: For this de-escalation and defusing, it is essential that your Will and Trust contain clear and unambiguous terms that spell out the beneficiaries’ exact rights, even as you need to write out the rights and responsibilities of executors and/or trustees. This allows no room for misinterpretation of what it is, exactly, you want to happen.
Even more so with blended families, it is imperative that you meet with all affected parties while you are still alive and well to give yourself to clearly explain you wishes. Settling matters before you pass helps keep their relationships intact after you are gone. Furthermore, giving your current spouse and your children from a prior relationship room to express their thoughts will give you deeper insight into how you want to go about handling your intentions and hopes for the future.
Now, this situation is delicate, because if your new spouse were to inherit everything you have when you die, your children from a prior marriage may receive nothing when your new spouse dies. An alternative is that you have planned in advance to ensure your assets are held in a trust for your new spouse to be used during their life, and then stipulate that the balance should be mandatorily passed on to your children upon your spouse’s death.
But another point of contention rises from this scenario.
In this case, it might be best for your new spouse to invest the assets conservatively to ensure that they have enough money to live comfortably for a few more decades, rather than investing assets for growth. However, the children (especially if they are younger) might be better off having the assets used in higher-risk investments with larger payoffs in the long run, but leave less income for the surviving spouse.
Thus, it may be best to name a neutral third party as successor trustee to ensure both the children and the surviving spouse’s interests can be balanced fairly.
Prevent Disputes Before They Happen
The best way to deal with Wills and Trusts planning disputes is to do everything possible to make sure they never occur in the first place. This means working with us, your Personal Family Lawyer® to put planning strategies in place aimed at anticipating and avoiding common sources of conflict. Moreover, it means constantly reviewing and updating your plan to keep pace with your changing circumstances and family dynamics.
Whether the potential dispute arises from disgruntled heirs, sibling rivalries, or the conflicting interests of members of your blended family, as your Personal Family Lawyer®, we are specifically trained to predict and prevent such conflicts. Meet with us today to learn more.
This article is a service of Levi Alexander, Personal Family Lawyer®. We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.