After a parent passes away, how to divide and distribute the estate can become a bone of contention between the surviving children. If unresolved, this argument can drag on for a long time and cost heavily due to legal fees. Disputes over Will’s terms can often intensify long-standing family grievances, causing rifts that may take years to mend. The worst-case scenario might lead to a permanent family break-up.
Although every family’s circumstances are unique, there are often ways to settle disputes peacefully or avoid them altogether during probate litigation. If you fear sibling rivalry and estrangement over a family heirloom after your death, here are a few ways to keep family conflicts to a minimum during the probate process.
1. Choose your executor wisely
When a person dies “intestate,” that is to say, without leaving a legal Will, a probate court distributes their assets according to the intestate succession laws. The first step is for someone, usually an heir, to initiate the probate process. Next, the court appoints a personal representative or “administrator” to oversee that the assets are divided equally among the deceased’s heirs, who may include (in the order of priority) a surviving spouse, children, siblings, or even cousins. However, if the court fails to locate any heirs, the state takes possession of the entire estate. So, when you pass away without a Will, there are greater chances of your valuable assets not landing where you wanted them to.
On the contrary, when the deceased leaves a Will, they usually name their representative. This individual, also known as the executor, petitions the court to probate a Will and distribute the estate word for word according to the deceased’s wishes stated in the Will.
Therefore, pick an executor you know will act in your best interest, preferably someone who can resolve a conflict amicably rather than worsen it. Also, select someone that others won’t challenge. Let’s say you’ve mentioned your brother and spouse as heirs in your Will, but they are always at loggerheads with each other. Your spouse may contest your choice if you designate your brother as executor. So, it’s best to talk to your family members about the decision and reach a mutual agreement to prevent issues.
2. Prepare a comprehensive estate plan
Another step to limit family disputes after your passing is to create an estate plan while you’re still healthy and think rationally about your future and that of your loved ones. Whether you write a Will or revocable living trust, your plan must include healthcare instructions, also known as advanced healthcare directives, on how you want to be cared for if you’re terminally ill or in a persistent vegetative state.
A financial power of attorney is also an essential part of a Will. In addition to delegating authority over your financial matters to the “agent,” a power of attorney can also stipulate how you would prefer those matters to be handled. It may look like a lot of work at first, but a comprehensive plan with all the terms clearly defined will leave no room for interpretation and stop a conflict before it starts.
3. Be sure to revise your Will or estate plan regularly
Unfortunately, once a person has finished and signed off their Will, they typically put it aside and don’t think about it again. Life’s constantly changing. There are various situations—getting married or divorced, having a kid, adopting a pet, winning a lottery, inheriting a large sum of money (or losing it), moving to another state or country—which could prompt a review at least once every few years.
Perhaps your executor can no longer juggle this responsibility with other life commitments. Or, a recent social interaction with them made you realize that they were not as credible as you thought. In such circumstances, it would be beneficial to revise your Will so that it accurately reflects your current wishes and not just those as of the date it was originally drafted. Because if you don’t, you will unwittingly leave your family grappling with several unanswered questions with no plausible explanations—like why a family member wasn’t given as much as another.
4. Communicate openly and frequently
Discuss your plans for passing wealth with your family openly. They won’t feel blindsided because you’ve been honest with them. Also, bring them up to speed on any changes in your Will. If you keep them up-to-date on recent developments and explain the reason behind your decisions, they won’t speculate or become suspicious about being treated unjustly. Even when someone challenges a bequest slightly jokingly, you may predict potential conflict and take swift action to de-escalate it while you’re still alive. Whatever you do, ensure everyone is on the same page.
Moreover, as part of the probate process, the executor may need to change the locks, protect the property, or otherwise take ownership of the assets. Make this known to everyone from the get-go so that everyone accustomed to using the property or entering it unannounced is aware of the situation.
Perhaps some distant relatives are dependent on you for financial support. You need to talk to them to find out if they have any backup plans for dealing with financial emergencies when you’re gone. Discuss with your loved ones if the estate can afford to keep providing for them, and if so, how. Keep them informed of any arrangements you make beforehand, so they are not appalled when the clause turns up in your Will out of nowhere.
While the executor has the final say in all estate matters, you should also allow your family to share their perspectives.
5. Bequeath most of your wealth to your children
Like any other person, you probably want your loved ones, especially your children, to benefit from your accumulated wealth. If you’ve been married more than once, one way to secure your children’s future after your passing is to avoid mixing assets you amassed from a previous marriage with the ones you got in the current one. That’s because the surviving parent sometimes steps in to manage the family finances after one spouse passes away. If you have biological children from a previous marriage, they will become the legal owners of your wealth only after the death of their step-parent. When your children rely on your property for necessities like education and healthcare, it might lead to family disputes between your biological kids and their stepfamily.
Therefore, it would be best to reach an agreement that allows your children access to the assets before their step-parent passes away.
Probate can be an emotionally trying time for families. The grief of losing a loved one, alongside the hope of gaining financial security through settling the estate, might cause family members to behave in ways they usually wouldn’t. Still, with enough forethought, planning, and open dialogue, as discussed above, everyone can make it through the process with their ties intact.
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