Process: How to avoid Conflict during Probate

Family disputes are never something anyone would like to deal with. But no matter how hard you try, there often arise some situations in which the likelihood of a conflict becomes very high. One such case is probate litigation.

A person’s will usually names an executor or a personal representative who will be responsible for managing all their property and finances in the event of their death. If a will does not name anyone, the State is responsible for choosing an Administrator. This process of proving a will in court or settling the estate according to the laws of intestacy of the State, in the absence of a will, is called probate.

Of course, many a time, family members of the deceased are unable to decide on who the Administrator should be or want to contest the will’s validity if a will exists. That is when probate litigation and the associated disputes start.

But inheritance does not have to cause family conflicts every time. Any good probate litigation lawyer in Miami should be able to advise you on how to avoid conflict among your family members when the time comes to pass on your property to inheritors. Here are a few tips to start with:

Plan your estates well ahead of time

The most essential step in avoiding family conflicts during probate is in the hands of the estate owner, in the first place. Parents must be far-sighted when it comes to estate planning. Most of the family conflicts in probate arise between siblings. That is why parents must take necessary steps to ensure that in the event of their death, it is clearly decided who receives what part of their property.

Having a legal will is a must for a parent. It should specify which child inherits which part of their property. Property in this can mean anything of value – a house, a business, their savings, or even valuable artifacts.

If the parent does not want to hand over the house or business to any one child, for instance, they can also specify that the house/ business be sold. The proceeds can be divided among the siblings. A parent also has the right to disinherit a child or exclude them from the will. But doing so without an explanation may again result in conflict.

If a parent chooses to disinherit a child, they must clearly state that in the will. They should also mention a reason for doing so, in the best interest of everyone else.

• Create a trust to distribute your assets

Another way to manage and distribute your assets while avoiding family conflicts is by setting up a trust. A trust is a fiduciary relationship in which you, the trustor, give the right to hold your property/ assets to a trustee. The trustee holds the property for the benefit of a third party which is usually your children and spouse.

Unlike a will, a trust cannot be contested. In the event of your death, the trustee has to ensure that all your assets are distributed according to your wishes. It does not have to go through probate as a will does.

A trust may be an easier way to distribute your assets with no scope for legal conflicts. But it is also much more expensive than writing a will and needs to be actively managed from the moment you create it.

• Leave no place for ambiguity

The biggest hurdle in probate cases is ambiguity. When your will does not clearly state your final wishes and leaves scope for different interpretations, that is when conflict is most likely to arise. If the will is ambiguous, it can lead your family to get into conflict even when there wasn’t any to start with.

A well-drafted will, or even a trust, should be absolutely unambiguous. It is best to write your will or the terms of your trust in consultation with an experienced attorney. They can advise on the right language to use and avoid ambiguity in doing so. The will should be drafted while you are in good health and mentally capable of making conscious decisions on who should inherit your assets and property.

• Do not assume that everyone will come to a mutual understanding

Discussing or contemplating our death is not always easy for most of us. But in the best interests of your family, it is important that you settle things well ahead of time. You need to understand that the will or trust you are creating is not about you but about your family and their future. No matter how well everyone gets along right now, matters of inheritance are known to tear even the most tightly-knit families apart.

So it is best not to assume that your family will come to a mutual understanding and amicably sort things out among themselves. Making your own decisions while you are still capable can save your family the turmoil of having to think for everyone.

• Update your will or trust in case of major life events

When you create a will or a trust well in advance, it is important to remember it may not be the last and final decision you want to execute. There may be major life events in the future that will alter your decisions.

For instance, say when a grandchild is born, you may want to put aside a part of your assets for him or her.

Or if you decide to get divorced and do not want any of your assets to go to your spouse in the future, you may have to exclude them from your will.

Make sure that you update your will or revocable trust whenever there is a need.

• Communicate with your family and explain your decisions

Lastly, it is always best to sit with your family and communicate what you have decided for them. If you have decided to exclude a child or your spouse from the will, you must tell them yourself, so they can hear it from the source itself.

Communicating with your family gives them the time to ponder over the matter, understand your decisions and reconcile with it. This helps prevent issues or misunderstandings occurring between the family members in the future.

Conclusion

Probate is complicated and without a little planning on the part of the estate holder, it can take unprecedented turns. To avoid family conflicts and save your loved ones the trouble of going through probate litigation and court cases, you should take proactive steps to settle everything well before time. Seek advice from a qualified litigation lawyer for probate in Miami to help you out in making the right choices.

Luis E Barreto & Associates P.A. have the most experienced and qualified probate litigation lawyers in Miami to help you with probate litigation, estate planning, trusts, wills, and more. Get in touch with us to know more about our services.