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Probate and Trust Litigation Avoidance: Techniques for Experienced Estate Planning Counsel

An Ounce of Prevention Is Worth a Pound of Cure

Because of the financial and emotional toll imposed by probate and trust litigation, every reasonable effort should be made to avoid such litigation.  Retaining experienced estate planning counsel is an important first step in enabling families to avoid costly and protracted trust and probate litigation.  A building with a firm foundation is less likely to face the possibility of collapse.  However, the owner of the house, who gives the builder instructions, also bears responsibility for the result.  Experienced estate planning counsel will advise regarding how to minimize the chances of estate litigation.  If that advice is disregarded, the instructions given to the estate planning counsel may result in a will or trust with provisions that are unreasonable, inconsistent, or likely to cause conflict.  However, even a first-rate estate planner is not a guarantee against litigation by some conflict-prone or irrational relative, just as a sound foundation of a house may not protect it against the ravages of an earthquake or other natural disaster.  Nonetheless, retaining experienced estate planning counsel is an excellent first line of defense in avoiding probate and trust litigation.      

Identifying Competent Estate Planning Counsel

How does one find the right estate planning counsel who can help avoid litigation?  It may well be the attorney who has been advising your family for years.  You want an attorney who is experienced and can see likely problems before they materialize.  You want someone who has no conflict or interest and will not be perceived to be giving advice based upon personal relationships with other family members.  Not every estate planning lawyer can have gone to a prestigious law school, be a partner in a top law firm, have the highest ratings on Internet attorney sites, lecture at educational programs for fellow attorneys, belong to prestigious estate planning professional organizations, have written books and articles on estate planning, and been recognized for excellence by his or her peers.  But if the value of the estate is substantial, it is not unreasonable to look for an attorney with substantial estate planning experience and at least a modest record of achievement.  Having a lot of experience with probate and trust litigation arising from his or her own planning work may not be the best indicator, since the ideal estate planning attorney minimizes such outcomes.

A Sampling of Litigation Avoidance Techniques for Experienced Estate Planning Counsel

While good draftsmanship of wills and trusts is certainly a necessity, it is equally important that estate planning counsel know everything that he or she needs to know about the client’s property and business interests, mental and physical health,  and relevant personal and family relationships.  Armed with this knowledge (usually recorded in meticulous notes of meetings held with the client requesting the will), litigation avoidance measures may be taken.  If, for example, the family thinks Aunt Clara is applying undue pressure to get a large bequest, perhaps she should not be present during the estate planning process and the will should not be drafted by her niece, the personal injury lawyer.  If the will is for someone who is 95 years old and there will be foreseeable claims of lack of testamentary capacity, an examination by the appropriately qualified medical professional, shortly before the will is executed, might be helpful.  Sometimes an estate planning professional will discuss with his or her client the possibility of having a family meeting to discuss the estate plan or, perhaps, the option of leaving behind a letter, written by the client and to be opened after the client passes.  Such a letter might, for example, explain why nephew Herbert, who almost bankrupted the family business, is getting a spendthrift trust and not the stock he wanted in the family business.  Less frequently used litigation avoidance techniques include videotaping parts of the estate planning process, the use of multiple wills executed at intervals, or including a clause in the will penalizing with a lesser bequest any beneficiary who challenges the validity of the will.  Some of these measures can be two-edged swords and can backfire when employed by the less experienced estate planning attorney.  Lastly, when a probate or trust litigation seems highly likely, an alternative may be to seek mediation or use the collaborative approach discussed in a prior blog.

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