Many family circumstances can increase the risk of probate litigation.

High-risk factors that often bring about probate litigation can include sibling rivalry, second marriages without a prenuptial agreement, and dysfunctional family dynamics. Also, a non-standard estate plan may treat children differently, omit a child, maintain an overly detailed trust, or appoint a substandard fiduciary.

There are two fundamental reasons for probate litigation:

1. Disputes about how to handle an incapacitated family member
2. Disagreements regarding the dissolution of the estate after death

Risk Assessment

Take common risks into account and have an open dialogue with your family about your estate plan and intentions should you become incapacitated or pass away. Your estate plan should include:

• Comprehensive protective measures if you become unable to handle your own affairs
• Simple transfers of real estate
• Documented evidence of gifts given to family members during your lifetime

Early document drafting with your estate planning and probate attorney and an honest evaluation of the likelihood of interpersonal family issues will mitigate the risk of costly probate litigation that can damage relationships.

Defective Estate Planning Documents

Probate litigation often involves estates with self-prepared estate documents. Handwritten forms and documents from online resources lead to many mistakes you may not foresee.

Litigating over legally defective documents often far exceeds the cost of hiring an estate planning attorney to prepare them correctly. 

Fiduciary Roles in Estate Planning

Be hyper-realistic about your family dynamics. This can often prove difficult for a parent since it means owning up to sibling rivalry and identifying hostilities in blended family situations. Selecting one adult child over another to act as a financial or medical power of attorney can cause conflict and mistrust among siblings. You may consider selecting a trusted but neutral third party or professional fiduciary to administer your estate.

Fiduciaries can be patient advocates, guardians, trustees, and personal representatives of an estate. These individuals must make important legal, medical, or financial decisions for the benefit of others. Family members making these decisions may unintentionally violate their fiduciary duties, leading to litigation. It is best to consult your estate planning attorney when appointing your fiduciaries to understand the rules and role they will fulfill.

Undue Influence

When you begin your estate planning process, it's best not to include your beneficiaries. Undue influence can become a legal issue if family members sense someone is attempting to influence the decision-making process. Undue influence can come about if a family member is seen driving you to the attorney's office and attending your estate planning meetings. Questions about whether the plan truly reflects your wishes and who authored the estate plan can lead to probate litigation.

Consider having a medical evaluation if you have concerns about a challenge to your estate plan. A doctor's examination confirms you are of sound mind and body when creating your plan and that you can make informed decisions. No one will be able to challenge your mental fitness.

Verbal Agreements

Don't make verbal promises about inheritances. They are legally unenforceable and can contribute to someone challenging your estate plan. The best strategy is to manage the expectations of your inheritors honestly and directly by only making promises you are willing to document legally.

Legal Updates and Reviews

Some probate disputes arise because estate planning documents reflect outdated or inaccurate information. Life changes that include births, marriages, divorces, deaths, and changes in your intentions may all affect your estate plan wishes. Keeping your relevant legal documents safely stored and knowing they are accurate and routinely undergoing review will reduce the likelihood of probate litigation.

Your estate planning attorney can help you mitigate the risks of probate litigation within your family with well-crafted legal documents reflecting your wishes.