Last week, my colleague Noelle Lussier provided valuable insights into avoiding probate litigation. Building off of that, with a particular emphasis on litigation concerning the validity of Wills and Trusts, one common theme that runs throughout these cases is “unfulfilled expectations.” One example is a daughter who expected to receive equal treatment in her mother’s will and did not expect her sibling to receive a larger share in return for providing care to the mother during her final years. Another example is a son from a man’s first marriage, not expecting his father to include stepchildren from a second marriage as equal trust beneficiaries. Negative feelings caused by these surprises – and a lot of litigation – can be avoided if parents are more open with their adult children about the provisions of their estate plans and the reasoning behind those provisions.
As we engage in probate litigation, we very often find ourselves telling our clients: “This situation is very difficult, and we cannot know for sure what [the deceased person] truly intended or why, because they’re not here to tell us.” Wouldn’t it be nice if we could get those answers before it’s too late?
No one wants to talk about death in general, and the communication becomes even more uncomfortable if you have to explain something that your audience might not want to hear. There are many options that may help mitigate the discomfort in terms of the setting, who is present, and what context is provided leading up to the conversation. One low-confrontation option might be to write a letter explaining your decision and your thought process. Ideally, the author will share this letter prior to passing away, but another option might be to leave a sealed envelope to be delivered after your death. The important point is to ensure your voice is heard by your loved ones. It will help them to have your insight and not just legalese-ridden estate-planning documents.
Preparation is a crucial component to avoiding litigation. In this area, appropriate communication is perhaps the best preparation you can undertake to ensure peace in your family following your death – rather than a controversy over the terms of your estate plan.