Are you setting your family up for a big battle after your death? Unfortunately one of the things that I see all too often is the disintegration of family relationships at the death of a loved one.  A parent or grandparent may be the glue that binds a family together, and once they have passed away, a lot of the historical conflict in the family rises to the surface.

You would think that the primary fights between a decedent’s heirs would involve money.  Actually, the main disputes have little to do with the estate but are simply a rekindling of prior transgressions – old wounds opened up.  I have seen major disputes involving distribution of tangible personal property (i.e. family furniture, heirlooms, etc.), most of which has little financial value.  Obviously these items carry a lot of emotional value and individuals have a tendency to dig in and refuse to compromise if they believe they are being asked to give up something with these strong emotional ties.  Other disputes often involve a perceived lack of fairness in the way a decedent may have assisted one beneficiary during life with gifts to the exclusion of other beneficiaries.

Often these conflicts in an estate can lead to litigation.  The litigation may involve a challenge to the validity of the Will, known as a “caveat.”  A caveat may be initiated under several theories but the basic argument is that the Will is not the validly executed Last Will and Testament of the decedent.  More often, estate litigation may involve a challenge to the way the Executor is administering the estate, particularly where the Executor is also one of the beneficiaries.  In any case, once the beneficiaries hire lawyers the battle lines are drawn.  Regardless of the outcome, everyone loses in the process because the individuals and the estate incur unnecessary legal expenses in order to resolve their differences.

So what can you do to avoid these problems if you are aware of inherent conflict in your family or you have a friend in this situation?  The best advice I can give is to encourage communication.  Talk to your family and beneficiaries.  Tell them your wishes and your intent.  You don’t need to give them all the details of your Will or estate plan, but try to give them some general idea of what to expect.  I realize this may be an uncomfortable or  unpleasant discussion in many cases, but it can make a real difference.  This is most important where you are giving special treatment to one or more beneficiaries or where you expect some beneficiaries will not understand your motivations.  Even if the beneficiaries don’t like the results at least they can’t later say (after your death) that your wishes are not being honored.  Beneficiaries are a lot less likely to wage a battle based on their own selfish desires if they understand that the intent and wishes of the decedent are being carried out.

However you also have to be careful how you communicate on these issues.  Your validly executed Will (or Trust) is the final word on your intent and your distributions and it will control over any oral statements you may make about your wishes.  Whatever you do, please don’t tell your beneficiaries what they want to hear and then provide for something different in your Will.  I have had a few of these situations over the years and they almost always lead to unnecessary legal expenses and sometimes messy litigation.

Many of my clients ask about including a “no contest” clause in their estate documents.  While a “no contest” clause can discourage a Will caveat or other litigation under the right facts and circumstances, it is not a silver bullet.  Many of the disputes described above can and will arise regardless of any such clause in the documents.  By all means if you expect a problem in your estate, please make your estate planning attorney aware so he can put a big red letter sticky note in the file “Trouble Ahead!”

Remember communication can go a long way towards heading off these disputes.  More importantly communication can help heal the wounds that feed these issues and that should be the main goal for you and your family.  

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