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A Guide to Avoiding Probate Litigation

Legal disputes over wills and trusts, guardianships, and conservatorships can affect the authenticity of gifts and the ownership of family homes and land. The most successful approach to mitigating or avoiding probate litigation is carefully planning for the future. Comprehensive estate plans should be routinely updated with careful consideration and documentation of assets and gifts. A strategy should also be put in place to protect you in the event of incapacity. Each of these important decisions can contribute to a challenge-free transfer of estate assets to heirs.

A History of Good Trust Management

A great way to avoid probate litigation is with a revocable living trust that allows you to title assets to the trust and manage it until your death. Years of managing your assets within the trust prove that you handle your finances and property exactly as you intended if a contest is brought before a probate judge. Your competent management greatly reduces the risk of litigation as it demonstrates your mental capacity and financial management skills.

Fair and Equal Division of Property with Explanations

Gift-giving and real estate transfers to your children during your lifetime may open the doors for litigation after you are gone, particularly if these transfers have complex provisions and varying percentages. Consequences of unequal transfers of property or gifts often lead to children feeling the circumstances are unfair. Your adult children may not interpret your underlying future intent. For example, dividing ownership of the family cabin, giving one child eighty percent and the other child twenty.

The same holds for personal gifts like jewelry, baseball cards, or art collections. A parent may promise inheritance of a gift, but you may be inviting future probate litigation without detailing it in a document with your signature. Gift promises and real estate transfers often lead to disputes between siblings and probate litigation.

Powers of Attorney

Incapacity can be a challenging topic for a family to work through. Incapacitation can happen at any age due to a sudden illness or accident. The thought of relinquishing financial and health care decisions to adult children or other family members can be unsettling. But implementing financial and medical powers of attorney can help avoid future litigation between family members. Nominate a guardian and financial and medical conservators while you have sound decision-making capacity and autonomy. They will be designated in your will and durable powers of attorney documents.

You can still make your own healthcare decisions even with a healthcare proxy or medical power of attorney. They can only make these decisions once a doctor deems you physically or mentally incapacitated. In contrast, a durable financial power of attorney will retain decision-making powers over finances upon signing the document. An estate planning attorney in New York helps you identify the criteria and specific needs involved in making decisions for this crucial role. Select both of these representatives well in advance of unforeseen events requiring their help.

Don’t Procrastinate

Establish your will and trust early on to control and communicate your personal and real property distribution to heirs. Your will protects your family from intestate statutes or laws that govern dying without a will. It nominates a personal representative to oversee your estate, the payment of outstanding debts, final taxes, guardianship, and the dispersal of remaining assets.

Note that most states will not consider stepchildren as part of an inheritable estate without a will specifically including them. Also, without a will naming a representative, most families typically fight over who is best suited to the job. Both situations can lead to expensive and time-consuming litigation.

Your will and the naming of financial and medical durable power of attorney representatives are crucial to avoiding probate litigation. To guard against litigation more fully, create a revocable trust that will avoid probate. If it is challenged and you have been competently overseeing the trust, it’s more difficult to contest.

A will, durable medical and financial powers of attorney, and a trust combined provide a strong defense against probate contests, but it is not guaranteed. However, your estate planning attorney can ensure all documents and instructions are clear, decreasing potential litigation.

Please contact the lawyers at Russo Law Group, P.C, or call 1(800) 680-1717 to speak with a qualified elder law and estate planning attorney in New York to tailor a long-term care protection plan for you or your loved one. Be sure to take advantage of our free seminars and webinars to learn more about how we help you plan for the future and achieve peace of mind.

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