How to Avoid Probate Litigation

By Rebecca M. Vaccariello, Esq.

How to Avoid Probate LitigationAs a probate litigator, I see many cases that cannot be avoided.  However, there are some probate and trust litigation matters that potentially could be avoided with proper planning.

One of the biggest areas that tend to cause problems is when people endeavor to tackle complex estate planning on their own.  Even simple wills can cause problems that need the probate court’s resolution if there are internal inconsistencies.  More complex matters are best left to attorneys however.  Additionally, if you know you have a family dynamic that lends itself to conflict, you want to take as many precautions in executing estate planning documents as possible to avoid preventable mistakes.  The cost in the short term is much less than the litigation costs that may need to be incurred by your family after you are gone.  Many people try to avoid using attorneys to make changes to their estate planning documents, not recognizing the incredible costs of litigation if those documents are not done properly.  If you are debating a change to your will and you try to do that on your own, you run the risk of not properly making that change.  You also run the risk of having multiple conflicting documents if you have a trust and a will.  The old adage of, if it’s worth doing, it’s worth doing right, comes to mind and definitely comes into play for any complex or high value estate plan changes especially.

Another area that creates unintended problems is when people create trusts but then fail to fund them or fail to properly fund them.  For example, if you have an attorney create a trust, intending to put your Naples condominium into the trust, and then fail to put the investment property into the trust’s name, you have failed to fund the trust.  The trust is a shell  with nothing in it if this occurs.  In this instance, if your trust devises the Naples condominium to a particular person, your planning was for naught because the trust cannot transfer property that it does not own.  It might make sense, depending on your time and expertise, to have your attorney put your intended property into the trust to ensure that it gets done and gets done properly.

Guardianship proceedings are another area that can be avoided in some instances.  A simple tool to avoid a guardianship proceeding is to execute a durable power of attorney.  A power of attorney is a very powerful document and the agent you chose should be selected very carefully because the power of attorney document is effective upon execution.  A durable power of attorney is often executed alongside a medical power or attorney and a living will.  A durable power of attorney allows an agent to manage your finances; a medical power of attorney appoints an agent to make your health care decisions; and a living will helps your agent understand your medical preferences so that they can act in accordance with your wishes if you cannot communicate.

One of the single largest factors in whether protracted probate and trust litigation takes place is the family dynamic.  When families go through divorces and remarriage there are often multiple families then linked together and this factor seems to be a common denominator in many probate and trust litigation cases.  Even without divorce or remarriage, every family can relate to having one or more difficult family members.  It is these situations that can create the type of setting whereby litigation becomes inevitable.  In that instance, the best thing you can do is consult an estate planning attorney and make clear the contentious nature and tendencies present in the family and the attorney can take certain steps to document and record your wishes and the reasons for them.  In some cases, families can be almost certain that litigation will result and the best thing you can do is to take as many steps as possible to make sure that your wishes are followed after you are gone.

In the probate litigation context, as well as many others, Benjamin Franklin’s saying that “an ounce of prevention is worth a pound of cure” could not be more true.  The good news though is that there are steps that can be taken to avoid or minimize the expense of probate litigation for your family.

This Article does not constitute legal advice and may not be relied upon as such.  Each individual’s facts and circumstances are different. If you have any questions regarding your particular situation, please consult with legal counsel.

Rebecca M. Vaccariello is an attorney in the litigation department of Salvatori, Wood, Buckel, Carmichael & Lottes.  Rebecca focuses her practice on civil litigation matters involving contract, business and corporate disputes, construction law, real estate litigation and trust and estate litigation.  She is admitted to practice before the Supreme Court of the United States, the Second Circuit Court of Appeals, the U.S. District Courts for the Middle District of Florida and the Northern District of New York, and all Florida and New York State Courts.  In 2014, Rebecca was appointed by Governor Rick Scott to the board of the Collier County Housing Authority for a three-year term.  A native of New York, Rebecca previously served as a judicial law clerk to a civil trial judge in New York for over five years, and, prior to that, worked for six years in a general practice litigation firm in New York.

Salvatori, Wood, Buckel, Carmichael & Lottes
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