Avoiding Probate Litigation: A Lawyer’s Top 5 Tips | Burns & Levinson LLP

The most basic and orderly way to avoid probate litigation is to plan ahead. Plans may include full, comprehensive land plans, simple land transfer, implementation of protection measures or naming agents if there is a shortage. Individuals with loving families often argue that the cost and burden of planning ahead does not always outweigh the benefits. However, guardianship and conservatorship disputes, Will and trust contests, and fights over real estate and family gifts are just a few of the kinds that litigation lawyers avoid on a daily basis. Investing first for a skilled lawyer and a well-thought-out plan can save you time, money, and emotional turmoil.

Creating Precautions:

Establish your “in case of emergency” measures as quickly as you can. These protection measures include identifying custodians and conservators in your land planning documents so that decisions are already made in your absence. Many individuals are concerned about delegating financial decision -making powers and the health of their children or family members. However, these choices are important to avoid litigation between family members down the road. As individuals age and are no longer able to make decisions for their health and well-being, family members are often left with the burden of deciding who should serve in those decision-making capacities. These decisions are often made while individuals are undergoing significant medical treatment or health damage, which welcomes family conflict.

By planning ahead and nominating a guardian and conservator now, while you have the autonomy and decision-making capacity to do so, you can prevent the obligation of future family members and open the door to family disputes. The advantage of nominating a trustee and conservator now is that, if and when an individual is deemed incompetent, the Court must give preference to the nominated fiduciary. If the incompetent person has no nomination or stated intent, the Court may appoint “any suitable person” as custodian or conservator. It is necessary to avoid the litigation of nominating an individual now and work with them on your future plans and aspirations if there is a shortage. Disputes include disputes over who is the right person, and arguments over decisions made by the appointed fiduciary and the powers held by the fiduciary. This nomination may occur on the final Will and testament of the individual, firm power of attorney and/or their health care proxy.

Nominate Your Agents:

Another way to actively plan is to nominate your health care agent and/or strong power of attorney today for tomorrow’s decisions. Health care agents can do this by implementing a health care proxy. Individuals often find comfort in the idea that health care decision-making powers are not delegated to their agent until the individual is unable to make decisions or is considered incompetent by a physician. Depending on the language of your health care proxy, you may grant (or deny) various powers related to troublesome medical procedures, end-of-life care and treatment, and/or release of information. A strong power of attorney usually retains their powers to make financial decisions once the principal signs the document. There are various options to consider when making decisions about a lawyer. Once again, it is important to establish these agents before conflicts arise between children and family members. If there is no agent in place, the biggest roadblock clients face is whether they need to act for a parent, whether medical or financial, thus requiring Court intervention. Children with elderly parents sometimes need to be easily involved in health care decisions or management of large assets but cannot because their parent has not nominated a health care proxy. or power of attorney. As a result, children are forced to go to Court to obtain various powers necessary to protect their parent.

Proper Execution and Execution of the Will:

Establishing a Will before a person dies allows a testator (the person who created a Will) the opportunity to control and communicate their wishes for their personal and real property. The testator may also nominate their personal representative or the individual accused of managing the land upon the death of the testator. By making a Will, the testator’s family or those in charge of the estate can avoid the unauthorized laws established in Massachusetts. These laws govern the distribution of lands where the testator has left no Will. The nominated personal representative also has priority to serve as such, and the Court’s appointment is usually automatic (awaiting objections from interested parties). Without this nomination from the testator, family members often fight over who is best suited for the job, leading to litigation and costly disputes.

Must work with an experienced trustee and land attorney when enforcing a person’s Will. There are various requirements for the execution of a Will, including testamentary capacity. Even if the state is different, Wills are also often executed in the presence of witnesses and a notary, proving the capacity and willingness of the testator to sign their Will. Proper enforcement is the key to avoiding future litigation, because claims that the Will was enforced without witnesses, the testator did not know what they signed, or the testator was overly influenced. typical probate litigation scenarios.

Trust in Creativity and Unquestioning Language:

Creating a trust is a better way to avoid probate litigation, because trusts often prevent court proceedings completely. Whether in a trust or a Will, it is necessary that the provisions be clear and vague to avoid future litigation. Unclear and outdated terms about property disposition often lead to lengthy disputes about translation. Misuse of words, such as the accidental use of “Settlor” when you mean “Trustee,” can lead to costly litigation if that misuse affects distributions to beneficiaries. Trust litigation is often directly charged against the trust, and therefore, against the beneficiaries. If you have any questions or need clarification about a provision, ask now while the drafter has a chance to explain.

Real Estate Transfer and Gifting:

Finally, real estate transfers can also open doors for litigation if the transfers involve complex provisions and varying percentages. Using percentages can be a bad arrangement to deal with bad kids. Consider the facts of giving 50% ownership to each of your two children without ever talking to each other. A forced sale of property and litigation over who pays for what could happen. If your intention is for the kids to stay home, everyone will earn rent income, obviously. Forcing children to interpret your underlying purpose for the future is not only burdensome but creates more contention between siblings. In addition, documenting gifts made or received can also help avoid future litigation. If you intend to gift your daughter your string of pearls, put it in a letter to accompany your Will. Just saying out loud your future gift intentions does not create a gift. This, however, creates an opportunity to argue when one child claims they were given an asset and the other disagrees.

Leave a Reply 0

Your email address will not be published. Required fields are marked *