There is a perception that estate litigation occurs only where there are multi-million dollar estates, 2nd or 3rd spouses, children from prior marriages, or opportunistic care givers. While, yes, there are many estate litigation cases that result from lots of money, lots of wives and lots of last minute estate plan changes, estate litigations 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, in particular where there may be an unequal distribution of assets. They may want to avoid conflict however 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 of their children co-executors. Surely children who do not get along with one another during your life will 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.
The Wall Street Journal recently had an article on the same issue.