Because of my practice area, probate and elder law litigation, I oftentimes find myself in either the courtroom or the hallway with a client fielding this all too common question:
“What could we have done to avoid all of this?”
You probably have an estate plan which means you have certainly taken a step in the right direction to protect your assets and ensure that they get distributed as you wish.
But you may be able to do more.
Consider this all too common scenario:
- You pass away, leaving your entire estate to your daughter.
- Your daughter seeks to probate your Last Will and Testament.
- Your disgruntled step-son from a prior marriage believes that when you executed your Will, you did so under your daughter’s undue influence.
- Your step-son challenges the admission of your Will in Probate Court, which could take months and, if he loses, he has the right to appeal to the Superior Court, a process that could take years.
Ultimately, all of this takes time and prevents, or significantly delays, your daughter from receiving her inheritance, a fact not lost on the disgruntled step-son.
So, if your daughter comes to me in the hallway, at a break in the action during the Will contest, and asks me
“What could mom have done to avoid all this?”
Here is a sample of what I’d tell her:
Your mom could have added a living trust to her estate plan, where she could have transferred legal title of assets to a trustee (oftentimes the owner of the assets). One of the benefits of the living trust is that the trustee has immediate access to the trust assets.
Another possible solution is that she could have set up joint bank accounts, payable on death accounts, or transfer on death accounts. Of course, estate planning must be tailored to each person but accounting for these issues in the first place is a must.
In my experience, a successful outcome is one where you or your beneficiaries avoid court by preemptively addressing issues before they arise.
Believe me, the disgruntled step-son is looking for access to some assets. If there is no access, there is nothing to be disgruntled about. If there is nothing to be disgruntled about, your daughter receives what you intended her to and the step-son turns his opportunistic eye elsewhere.
Want to know the 10 ways you can protect your estate from being challenged? Click here for your free report.
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