Editor’s Note: Jenna F. Butler is a member of the Litigation and the Trusts and Estates Litigation Practice Groups at Ward and Smith, P.A.

Family Discord Unfortunately Is Common

In almost every family, the potential for dispute exists when a member dies, particularly if the member is the patriarch or matriarch and there is considerable wealth to be distributed. Whether it is the proverbial skeleton that comes out of the closet, a deep-seated wound that never healed, or a family member with a sense of entitlement or an unfulfilled expectation, a wide variety of unforeseen circumstances can bring about family discord when a will is probated. Sometimes the person executing the will, known as the testator, is aware of such circumstances before executing the will, and simply chooses to ignore them and hope for the best. On other occasions, the testator is not aware of such circumstances and, therefore, cannot anticipate what may happen or appropriately address such circumstances ahead of time.

Regardless of the Situation, Estate Litigation Is Worth Avoiding

As an attorney who practices in the area of estate litigation, I can tell you from experience that it is generally the case that no one truly wins when an estate is contested. Family ties can be severed forever, substantial sums are spent on the litigation, and the result may be a distribution of wealth that is far different from what the testator originally intended. For these reasons and others, it is worthwhile to ask some tough questions before you finalize your estate plan so you can address potential issues in advance and bolster the chances that your wishes and your family will remain intact when you are gone.

Issues to Consider

Certain circumstances, such as a child with special needs or a family member with serious physical, emotional, or behavioral problems, require particular attention during the estate planning process and should be addressed directly with your estate planning attorney. Marriages that involve stepchildren or non-traditional arrangements also often require special consideration. Similarly, any health issues that you may have and that may support a later challenge to your estate plan, such as a diagnosis of depression, bi-polar disorder, dementia, or Alzheimer’s, warrant the consideration of additional and special precautions. In addition to these more obvious areas of potential conflict, other admittedly difficult and uncomfortable questions you should ask before finalizing your estate plan include the following:

• Is there anything about your estate plan that you cannot, or do not want to, share with those who are close to you and, if so, why?

• Do any of your beneficiaries have an unrealistic vision of your wealth or your intended estate plan?

• Will your estate plan offend or disappoint anyone?

• Are there any verbal agreements or prior understandings between you and a family member (or other person) that are not in accord with your estate plan?

• Are there any past conflicts or disputes that may impact your estate plan?

• If your estate plan includes family business succession planning, have you honestly anticipated issues of skill, experience, ability, control, sibling animosity, and other potential problems or conflicts?

• If your estate plan contemplates co-ownership of real estate or other assets by beneficiaries, have you appropriately thought through the practicalities and potential problems inherent in such a plan, including the personalities and financial situations of the persons who will share ownership?

• Are there any disagreements or personality conflicts between family members, beneficiaries, and/or fiduciaries that would impact the ability of such persons to act fairly and reasonably?

• Does your estate plan seek to make a statement or to right perceptions of past inequities?

As demonstrated by these questions, and as uncomfortable as the issues they encompass may be, it is important to consider the social, financial, and historical dynamics of your family and other interested persons when addressing estate planning issues. In thinking through the answers to many of the above questions and exploring the relationships that may give rise to conflict and litigation, you can better anticipate potential bases for disappointment and challenge in advance so that such matters can be handled appropriately during the estate planning process. While doing so is often difficult at the time, this process may prevent, or at least decrease, the prospect of conflict and litigation.

Conclusion

Addressing conflicts and other family issues before death can be stressful. As a result, most individuals prefer to leave such issues to be sorted out after they are gone. Taking a more proactive approach is often the better course, however, as it can greatly reduce the potential for family discord and permanent ill will and decrease the likelihood of a challenge to your final wishes as set out in your estate plan.

© 2009, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Jenna F. Butler practices in the Litigation and the Trusts and Estates Litigation Practice Groups where she regularly represents clients with respect to trusts and estates and other general litigation matters. Comments or questions may be sent to jfb@wardandsmith.com.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.