A Last Will and Testament (Will) and trust documents protect and give people control over their assets, even after their death. Unfortunately, disagreements regarding estates may give rise to estate litigation. Beneficiaries and others who believe they deserve a share of the estate may contest a Will or litigate a Trust. Estate litigation can have negative consequences. Indeed, estate litigation can significantly diminish the value of an estate and harm family relationships. Individuals establishing estate plans may wish to contact an estate planning attorney who understands what causes estate litigation—and how to prevent it. Consider reaching out to the experienced estate planning attorneys at Harrison Law, PLLC at (480) 320-2310 to learn more.
Estate Plans and Probate
Wills and Trusts are estate planning instruments that may protect assets and control their distribution upon a person’s death, and estate planning can encompass many different types of legal documents. Although Wills are well known as instruments of asset distribution, an estate planning attorney may also help people set up Trusts to bypass probate. Although litigation related to Trusts can happen, Wills are more likely to give rise to litigation since Wills pass through probate. Probate is the procedure by which a court will review the will and assets of a deceased person. Probate can be expensive for the dead person’s descendants and beneficiaries and result in familial conflict as family members argue over who should receive assets in the estate.
Wills
Often, people assume that all they need to ensure their assets pass to their desired beneficiaries is to construct a Last Will and Testament (Will). However, relying too heavily on a Will to distribute assets may also lead to estate litigation. In the state of Arizona, and because of the low asset threshold, many Wills must pass through probate, meaning that the court must be involved in the distribution of assets in a Will. When Wills go through the probate process, family members who think that they deserve more significant amounts of the assets may contest the Will.
Skipping Probate
For many people, having an estate plan that avoids probate can be beneficial. Trusts are one tool that allows people to transfer their assets outside of probate. Additionally, jointly owned assets with a right of survivorship can skip probate. Further, retirement funds such as 401k plans, IRAs, and pensions, as well as life insurance proceeds and medical savings, transfer assets directly to a beneficiary.
Estate planning attorneys may use Wills in conjunction with other estate planning tools, such as Trusts, but it is rare for an effective estate plan to consist only of a Will. In fact, some estate plans will pass all property outside of probate and only include a Will as a backup measure to ensure the designated beneficiaries receive their assets. Primarily relying on a will to distribute assets often opens the door to estate litigation.
Contesting Wills
There are several ways that people can contest Wills and cause litigation. In Arizona, a will must be in writing, signed by the person who makes the will, called the testator, as well as two witnesses. A court may find that a will that does not meet these requirements is invalid. Further, when a family member thinks that a Will is incorrect or wishes to obtain more money from an estate, the family member may ask the court to invalidate it.
A Will may be invalid because of coercion, undue influence, lack of understanding of the contents of a Will, lack of capacity, forgery, or fraud. In these cases, the Will might not state the testator’s true wishes, and the testator may not have intended to make the Will.
If a child approaches a parent on the parent’s deathbed with a new Will, and the parent is hallucinating and lacks awareness of what is going on, the parent may legally lack capacity to sign a legal document. If the new will leaves everything to that child, at the exclusion of the child’s siblings, the Will may be legally invalid.
Excluded Children
Leaving a child out of a Will may also cause litigation. In some circumstances, a child who a testator intentionally excludes from a will may have hurt feelings and feel entitled to a portion of the estate. As a result, the child may contest a Will and argue that a Will is invalid. To avoid this situation, a testator may elect to leave all children money in a Will. Additionally, the Will may include a provision that challenging the will triggers a forfeiture of the bequest. An estate planning attorney can help people draft wills to avoid a challenge. Consider contacting Harrison Law, PLLC to learn more about how to create an effective estate plan that can potentially avoid estate litigation.
Blended Families
Just as leaving out a child can result in litigation, estate plans involving blended families may be associated with litigation. When an individual has children from multiple marriages, tensions may arise as to how the estate plan distributes property. Further, failure to update beneficiaries in IRAs, 401ks, and other financial accounts after a second marriage may give rise to estate litigation. People with blended families may wish to contact a knowledgeable estate planning attorney for assistance in creating an effective estate plan that could potentially avoid such estate litigation following their death.
Lack of an Estate Plan
Similarly, the failure to have an estate plan can result in estate litigation. Assets that did not pass to a beneficiary automatically at death must go through probate in Arizona. A property titled in the decedent’s name, for instance, must go through probate. Arizona’s intestate succession law may not account for an individual’s unique situation and could leave out people who are important to the individual.
Arizona Estate Planning and Litigation Attorney
Estate litigation can be costly for loved ones and can cause irreparable harm to familial relationships. People making estate plans may wish to understand the most common causes of estate litigation. Creating an effective estate plan could reduce the likelihood of litigation. To learn more about how to create an estate plan, consider contacting Harrison Law, PLLC, at (480) 320-2310.
© 2022 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved
This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.
