Five Steps to Avoid and Minimize Probate and Trust
By: Lauren L.
Probate and trust litigation can turn families into enemies and
convert inheritances into attorneys' fees. These disputes can
fueled by sibling rivalry, blended families, family grudges,
financial need, entitlement, revenge, greed, or spite.
Litigators have a bird's eye view of the issues which fuel such
disputes and are often able to anticipate potential issues before
they erupt, so they might be avoided in the future.
Some of us may need help making decisions or caring for
ourselves or our finances. Some questions to answer as you select
who you may want to act on your behalf if you are unable to act for
- Who will make your medical decisions and who will pay your
bills and manage your finances?
- How much power should someone else have over you and/or your
- Who can you trust?
In the absence of proper powers of attorney and living wills,
court involvement in the form of guardianship and/or
conservatorship proceedings may be necessary. Even if the
appointment of a guardian and/or conservator is not contested, the
court process costs time and money. In some cases where
there is no suitable family member to act as guardian or
conservator, or if there is too much family conflict, a private
fiduciary may be appointed as guardian and/or conservator. In that
event, strangers are making your most personal decisions and
managing your finances. Such court proceedings offer fertile ground
for family disputes, both at the time of the appointment and during
the guardianship and/or conservatorship administration.
Estate planning attorneys, accountants, financial management
counselors and other professionals can guide clients to secure
properly drafted and executed estate planning documents. They
will discuss the responsibilities of fiduciaries, and help you make
good choices as to whom you appoint as your fiduciary. Pick
the person who is qualified for the job, not the person
stereotypically named. The person appointed as agent under a
medical power of attorney may not be the right person to be agent
under a financial power of attorney. A family member is
usually the first choice for the fiduciary; however, a family
member might not be the right choice. This decision is not
about doing what others may perceive as "fair," it is about
selecting the right person for the job. The person selected
as agent should want to do the job and should be fully informed
about the duties and possible risks of accepting the
appointment. Alternate or successor agents should be
identified as well. In deciding who should be your agent
under a power of attorney, a probate and trust litigation attorney
can help identify potential issues to plan around particularly if
there are already strained family dynamics.
Make your plans in writing with properly drafted and executed
wills, trusts or non-probate transfers; do it properly and keep it
updated. Think about who is getting what and who is in charge
of distributing the estate or trust. Limit disputes over
distribution of personal property by making a written list
designating the intended beneficiary of each item. Don't
limit the list to things of significant monetary value - families
will spend huge amounts of money fighting over sentimental
objects. Again, there is no obligation to be "fair" to
everyone. Make your burial preferences known or designate the
individual who is to make such a decision if there is any question
or dispute. Many families have litigated over a loved one's
It is important to select the right person(s) or entity to
administer your estate as personal representative or trustee.
Consider the following questions when you make your selection:
- Who is nominated as personal representative, executor or
trustee of your estate?
- Is that person competent, trustworthy and responsible?
- Will that person's authority be questioned by anyone?
- Does the person want the job?
- Do they know what the job requires and do they have the
requisite skills to be successful?
- Does the will or trust sufficiently identify and/or give
guidance for appointment of a successor fiduciary if needed?
- Are there enough successors named?
- Is there a procedure for appointing a new fiduciary in the
absence of a named successor?
Different issues affect families differently. Challenges
such as family businesses and properties, blended families,
conflicting burial instructions, overwhelming medical problems and
diseases as well as changed circumstances can create a hostile
environment. Think about the issues that are unique to your family
when planning. Don't assume everyone will agree on
ARE THE DOCUMENTS
The validity of wills and trusts may be attacked by those with
legitimate and well-founded concerns related to the document's
creation and execution. The validity of documents may also be
attacked by those who are simply dissatisfied with the estate
plan. Wills and trusts may be contested based upon alleged
undue influence on the testator or trustor and/or based upon the
testator or trustor's lack of testamentary capacity when the
documents were signed. Red flag include:
- Were there fraudulent representations?
- Was execution of the will or trust a product of hasty action or
was it concealed?
- Was the person who benefited by the will or trust active in
securing its drafting and execution?
- Is someone just disappointed they did not get more from the
estate and hoping a lawsuit will pressure others to give up some of
their inheritance to avoid a legal battle?
- Might someone wrongly attack your mental capacity even though
you were competent?
Think about these potential issues as you are creating and
signing these documents.
With increasing frequency, vulnerable adults
are being taken advantage of by family
members, caregivers, con men, or unscrupulous vendors.
Arizona has enacted laws designed to protect vulnerable or
incapacitated adults from such financial exploitation.
You can protect your loved ones or friends from exploitation by
looking out for danger signs including: the
vulnerable adult begins making uncharacteristically large gifts to
new "best friends", or a new charity or others. Phone and
personal access to the vulnerable adult is suddenly being limited.
The vulnerable adult wants to change will, trust or powers of
attorney contrary to their long standing estate plan. New
professionals are being hired to take the place of long standing
attorneys or accountants. Taking steps to recognize possible
exploitation early on could save the vulnerable adult and his or
her estate significant sums - money that could be used for the
vulnerable adult's care.
After death, an individual appointed as a fiduciary (personal
representative, executor or trustee) has a duty to promptly
administer the estate or trust according to the will or trust and
to Arizona law. They have a duty to defend valid documents
and act for the benefit of all the beneficiaries. Fiduciaries
may fail to act promptly to administer the trust or estate or they
may improperly take assets. Sometimes beneficiaries and
fiduciaries have different interpretations of the same documents
(all the more reason to take care with the preparation of the
estate planning documents). Any of these scenarios can lead to
All parties have a duty to protect their own rights - if you
ignore the problem, it will not necessarily go away. If you
ignore potential issues for too long, you may be legally barred
from raising them later.
Probate and trust litigation can be expensive both financially
and emotionally. Such litigation can take a substantial
amount of time and can delay and reduce inheritances. Some
litigation can be avoided through good estate planning. Even
if probate litigation is started, the manner in which it is handled
can greatly impact its speed and cost. An attorney with
specific experience in probate and trust litigation will be helpful
to you if you find yourself or your family embroiled in a probate
or trust dispute. Do yourself and your family a favor by
preparing (and updating) a good estate plan after thinking through
all the potential issues that might arise. While you are
creating your estate plan, consulting with an attorney with
experience in probate and trust litigation in conjunction with your
estate planning attorney can help identify potential issues and so
precautions may be taken to try and avoid future disputes.
About the author: Lauren L.
Garner is a partner at the Phoenix law firm of Jaburg Wilk. She handles probate
litigation matters and has significant experience representing
families, fiduciaries and vulnerable adults in Probate Court.
Lauren can be reached at email@example.com
This article is not intended to provide legal advice and
only relates to Arizona law. It does not consider the scope of laws
in states other than Arizona. Always consult an attorney for legal
advice for your particular situation. This policy is
written based on Arizona law for Arizona employers.
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