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No one wants their family’s last memories about them to be fighting over their assets in probate court. Unfortunately, far too many Florida families find themselves in contested estate administration proceedings after a loved one dies. But yours does not have to be one of them. Use these estate planning strategies to prevent future litigation. That way, your assets will get to your family faster, without getting tied up in a probate battle.
One of the most common reasons family members file Will challenges is “lack of capacity.” This means that the petitioner believes that the person writing the Will was not of sound mind when the document was signed. To prevent probate litigation, start your estate planning early, while you are healthy. This will prevent family members from doubting your legal capacity, and make it harder to challenge your wishes later on.
Most people think of estate planning as applying after death, but a good estate plan will also include durable powers of attorney (DPOA), a designation of healthcare surrogate, and possibly a living will. These estate planning documents come into effect when you are no longer able to make financial or healthcare decisions for yourself. Executing these documents while you are healthy is a key estate planning strategy to help your family avoid going to probate court since they generally replace the need for the Florida Probate Court to appoint a Guardian or Conservator to handle your affairs.
Another estate planning strategy that reduces the risk of litigation is to shrink or even eliminate your probate estate. This can be done with a combination of a Revocable Living Trust, beneficiary designations, jointly held assets, and other estate planning strategies to avoid probate court. By removing assets and funds from your probate estate, you make it harder, and less financially viable for an heir to undo your estate planning by placing more assets directly into the hands of your trustee and intended beneficiaries.
Often, probate litigation is filed because a deceased person’s natural heirs are surprised by the language of their Will or trust. When a spouse or child is omitted without notice, or the division of assets changes, the people receiving less are more likely to file a petition to have that Will set aside. That is why one estate planning strategy to avoid probate litigation is simply to communicate your wishes ahead of time to beneficiaries and family members. This is especially important if you are choosing to intentionally disinherit a natural heir. Open communication about your wishes will reduce the chance of a would-be beneficiary being surprised after your death. It also makes it harder for that heir to claim their omission was a result of undue influence.
You have the right to keep your trust documents and other key parts of your estate plan private. However, other documents, including beneficiary designations and powers of attorney should be distributed to the professionals in your life to make sure there is no interruption in your care or the facility’s service. You should be sending these documents to:
You should also keep a copy of your entire estate plan in a secure place in your home, and your attorney should retain a copy as well.
Once your estate plan is complete, it is important to revisit it every few years to make sure everything is up to date. You may need to add beneficiaries due to births or marriages, remove them due to deaths or divorce, or adjust the distribution of your assets to account for property you bought or sold in the meantime. It’s also important to keep up with changes in the law. Keeping your estate plan updated avoids litigation because it prevents ambiguity. If a Will has not been updated in a while, it can be difficult to determine whether an award of a vehicle applies to its replacement, or how a bank account should be divided if its balance is substantially lower than the amount stated in the Will, for example. A good rule of thumb is that you should check your estate plan for needed updates every 3-5 years, or any time there is a birth, wedding, divorce, or a funeral in the family. We check in with our clients every 3 years.
While estate planning is about executing your wishes, and should always reflect your priorities, it is wise to get some help with the actual drafting process. Discuss estate planning strategies with an experienced estate administration lawyer before you sign the documents. That way, you can identify potential risks of probate litigation early, and make adjustments to protect your family from a long, taxing probate litigation process.
At Harrison Estate Law, we want to help you make honoring your wishes easy for your family and loved ones. Since we handle both estate planning and probate litigation, we know what can trigger a Will contest, and what to do to avoid them. Our estate planning attorneys will be happy to meet with you to review the estate planning strategies available, and help you make choices that will reduce the chance of your family ending up in contested probate litigation. Please contact us online or via email or call 352-268-1839 to schedule a free consultation. If you don’t live close to Gainesville or are practicing social distancing, we are happy to set up a phone or Zoom call.
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