Since one of my areas of practice is estate, trust & probate litigation, it is obviously not in my economic self-interest to counsel against getting involved in this type of litigation in the first place. However, first and foremost is a lawyer’s duty to his or her client, which while sometimes involves filing or defending a lawsuit can also mean trying to avoid that lawsuit altogether. After all, Abraham Lincoln once advised: ”Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses and waste of time.” That is still generally solid advice, although sometimes the fight just cannot be avoided.
That said, U.S. News published a good little article over the Thanksgiving holiday entitled “8 Tips To Avoid Nasty Estate Surprises” which provides some good pointers for avoiding estate, trust & probate litigation. In summary:
1. Pick a a reputable, experienced lawyer who has not performed any work for any of the other beneficiaries. Basically, you want an attorney who knows what they are doing in this area, who does not have a conflict of interest, and who will be representing your interests (only).
2. Pick an administrator who can get along with the family, maybe even a professional fiduciary (like a bank trust department) if no one else could practically fill this role. This is a biggie—oftentimes when one beneficiary is chosen to act as executor or trustee it can cause consternation with respect to the other beneficiaries.
3. Talk about your intentions with family members before any will or trust is drafted, in order to preclude surprises and fights after death and making everyone aware of your plans and desires. Open, honest communication can go a long way toward heading off battles over the family fortune.
4. Consider your state’s laws and create trusts if necessary to bypass probate if it is particularly burdensome under applicable state law. Again, our law firm engages in estate, trust & probate litigation—not estate planning—however we can refer you to some reputable attorneys in this area if needed.
5. Update the will or trust often so that challenges are less likely. One of the best ways to avoid litigation is to occasionally update your documents—under facts and circumstances (lots of objective, detached witnesses, etc.) demonstrating the absence of fraud and undue influence from others—so that it can be demonstrated you were polishing your estate and trust objectives up until the end your life.
6. Be sure to title your assets propertly so that the assets pass through or outside of probate as you originally intended. Too many folks spend a lot of money creating fancy trusts and then never do the relatively simple work of actually transferring assets into the trust.
7. Think about including a no-contest clause tied to testamentary gifts of a degree sufficient to discourage legal disputes. To help avoid post-death disputes it is worth possibly including a penalty clause that essentially poses a risk of losing their piece of the pie for any beneficiary who challenges the instrument in question after your death.
8. Consider allowing some discretion with respect to distribution of assets so that beneficiaries can agree to a distribution that best meets their own needs and desires. There is no one-size-fits-all strategy and of course none of us have a crystal ball, so sometimes providing for some flexibility is often a good practical solution.
While not a fool-proof plan to avoid estate, trust & probate litigation, the foregoing reflects some good first steps to staying out of the courts with respect to the family fortune. As we are in the heart of the Thanksgiving and Christmas seasons, I extend my best wishes to you with hopes for a fuss-free next few weeks.
Matt House can be contacted by telephone at 501-372-6555, by e-mail at mhouse@jamesandhouse.com, by facsimile at 501-372-6333, or by regular mail at James, Fink & House, P.A., Post Office Box 3585, Little Rock, Arkansas 72203.
