How to Avoid Probate Litigation After Death: Guest Blog by Connie Rakowsky

This post was written by Connie Rakowsky, an experienced mediator who has handled intergenerational family rivalries and hundreds of probate disputes between relatives after the death of a family member.

How to Avoid Probate Litigation After Death

If you have given any thought about to whom you want to give your belongings after your death, you will likely hire an estate lawyer to draft legal documents to carry out those intentions.  Because of the formality of the estate planning process, we all somehow assume that we can easily check that difficult task off our to-do list after we sign those documents.

But Not So Fast!

If you haven’t told your family your specific intentions, or discussed with them what possessions they would like to receive, they may not follow your instructions!  A reading of the will or a trust to those loved ones you leave behind will not necessarily clear things up.

Fighting over your intentions. Surviving family members are increasingly suing each other over the deceased’s intentions.  Family members each have their own views of what you actually meant, what should happen, and their place in the family.  After you are gone, the only formal avenue to sort out these differing viewpoints is in the Probate Court.  Probate litigation is the fastest growing litigation area for lawyers now.  These cases involve estates of all sizes. Evidently, there is no estate too small to argue over.  These cases, usually pitting family members against each other, can take years to resolve because they involve grieving parties each asserting their own grief in a process that is ill suited for handling the emotions that accompany the death of a loved one.     

Not Pretty.  Recurring themes in these Probate litigation cases include: unequal distributions, step or blended families with differing expectations, lingering sibling rivalries and jealousies, and heirs who were intentionally omitted from distribution of assets. These matters are complicated by the fact that often the elderly, now deceased, relative tells each beneficiary whatever they want to hear to be accommodating and not rock the boat of family dynamics. Claims of the elderly relative’s incapacity and the undue influence by a beneficiary are particularly divisive and common assertions in probate litigation.  As a mediator, I’ve seen these matters up close and personal and they are not pretty.  

A Solution: Talk. I know we cannot resolve all our conflicts with and between family members before we die.  But we can help our survivors administer our estates while preserving our assets. We do that by telling our family what we want, while we are still alive to have those kinds of conversations. We need to talk to one another.   “Death is inevitable and everyone dies. Yet it is extraordinarily difficult to face and to discuss with loved ones. At the same time, planning for death is an absolute necessity to save grieving family members and friends from chaos and confusion during an emotionally challenging time,” to quote Barbara Bates Sedoric, Founder of LastingMatters.

Here’s how to share your estate planning intentions with your family:

Speak to the lawyer that prepared your estate plan and tell him/her you want to meet with your beneficiaries with the help of a trained probate mediator.  Meet with the mediator and your lawyer about the issues that you predict will arise and make a plan to meet everyone together or separately, if necessary.  The mediator will provide a respectful, safe process for everyone to hear your wishes and implement them, including how to introduce the subject.  The goal is for your intentions to be paramount and honored.

If you haven’t done so already, complete The LastingMatters Organizer, so that you and your advisors understand and organize your current assets and intentions.  Then meet with your family together, or in smaller groups, according to the plan worked out in advance with the mediator.   If you invite your beneficiaries, they are very likely to attend.  

In the meeting, your lawyer will explain how the estate documents and the legal process works.  Everyone will hear the reasons why “Johnny is getting less than Sally”, what you mean by “equal”, and how your assets will be distributed.  The family will be helped to understand why Aunt Jane is getting the cherished Picasso painting and the “xyz” funds (so that the painting can be restored – not because Aunt Jane unduly influenced you). Your relatives will have an opportunity to talk to you about your wishes, ask questions, and they may get an opportunity to vent their feelings.   

Everyone will sign an agreement at the end of the mediation process and years of expensive, emotionally wrought future litigation will be avoided. Personal vendettas between siblings and family units will not play out due to any misunderstanding of your intentions. Families will not be divided into separate warring factions for generations to come. If you meet with family members in a mediation setting, Probate litigation can likely be avoided.  People can address planning for the inevitable honestly and openly. We are all going to die and you are dealing with the inevitable life event realistically, describing to those you love what you want to have happen when you die.   

Explaining your intentions in a mediated meeting is a price worth paying for avoiding the ‘chaos and confusion of an emotionally challenging time.’      

Connie Rakowsky mediates probate and other types of disputes.  Experience has been her teacher: she mediated hundreds of probate disputes and, in her own life, experienced intergenerational family rivalries between her father and his siblings. Connie’s paternal grandfather favored her father over his two older sisters in the family business. Generations later the resentments are baked into the family relationships.  Formerly a successful business and bankruptcy lawyer for three decades, she handled sophisticated matters for clients while employing a practical approach.

For further information, contact Connie Rakowsky at RakowskyMediation.com