When do you need estate planning? There is a perception that estate litigation occurs only where there are multi-million dollar estates, second or third spouses, children from prior marriages, or opportunistic caregivers.
While, yes, there are many estate litigation cases that result from lots of money, multiple wives and lots of last minute estate plan changes, estate litigation need only an emotional spark and a perceived slight by one of the beneficiaries to cause a litigation to quickly engulf an estate administration.
As in almost any other part of life, communication about your estate plan is the key to avoiding estate litigation. Some clients want to treat their children the same and divide their estate equally. Others wish to give more to their needy children and less to the ones who are in a better financial place or wish to take into account gifts or loans they made to one child during life by equalizing bequests at death. There is no wrong answer for what a client wants to do with their assets. However, all things being equal, if a beneficiary feels slighted because his sibling receives a larger share of the estate, and you are no longer around to provide an explanation, the stage is set for a dicey estate administration.
Many clients do not wish to tell their kids about their estate plans, especially where there may be an unequal distribution of assets. They may want to avoid conflict by remaining silent. As a result, this will likely increase the chance of litigation.
On the opposite side of the spectrum, clients also try to mend their children’s broken relationships via their estate plan by doing things such as naming all their children co-executors. Children who do not get along with one another during your life are not likely to mend fences while sorting out your personal property and deciding who gets Dad’s Rolex (or Swatch Watch) or Mom’s Diamond Tennis Bracelet (or Alex & Ani Bracelet). Siblings who never worked together by choice, are stuck with one another doing a lot of emotional heavy lifting. Consider naming someone other than your children as executor as another way to try to avoid conflict.
Take the time to speak to your kids about your estate plan and your rationale behind your decisions. At a minimum, you should communicate your wishes and rationale to your estate planning attorney. Communication is the best way to avoid lengthy and expensive estate litigation.