This article offers advice in two areas on how to avoid painful and expensive estate litigation.
Clear communication in how to distribute your personal effects is critical.
For instance, language in a will instructing your executor to “distribute my personal property in equal shares to my children” sounds clear enough, but it may not be.
It is not always the expensive items that cause problems. Often, it is the possessions with little monetary value, but high sentimental value that cause confrontations.
Dad’s $30 Case pocket knife that he always carried may be as likely to trigger a fight as his far more valuable gold coin collection that he rarely admired. Never forget that people become emotionally attached to objects that remind them of the deceased they miss.
A good way to avoid problems is to discuss with family members what items they consider special. Your will can then list what particular possessions are to be left to specific individuals.
Or, after learning what your loved ones are especially fond of, you may consider giving away possessions over time.
With this approach it is helpful to let your family know what you have gifted so that everyone knows you really did intend for this child and not that one, to have the brush you always used when they were children.
Suppose your personal effects contain several items that are monetarily worth significantly more money than the rest? In this situation there are several approaches to consider.
Perhaps the easiest is to allow the executor to sell the expensive possessions, and then divide the proceeds among the heirs.
If, however, an heir really wants your grandmother’s silver punch bowl, and they have the money, your will can provide that that they can purchase it from the estate at the fair market value.
Should the heir not have the funds to buy it, they can obtain the punch bowl, but their share of other assets from the estate is reduced accordingly.
Yet another approach I have seen work with great success involves heirs taking turns selecting the personal property they want from the estate until all of the effects have been distributed.
The order of selection is based simply on the heirs drawing numbers from a hat.
The Executor or Trustee
On too many occasions I have seen individuals who have spent considerable time, effort and money in developing an estate plan, only to have problems arise after their death because of a single re-occurring error — poor selection of their executor and/or trustee.
Trustees and executors have tremendous power over your assets, and they owe strict and specific duties to your beneficiaries. For this reason it is critical to understand how easy it is for them to breach these duties, and how especially easy it is for them to appear to have breached these duties.
Many people do not take the time to carefully consider who will best serve as their executor or trustee.
A common tendency is for people to nominate as their fiduciary their oldest child, their most successful heir, or the relative who spends the most time with them, without considering family dynamics.
Much of today’s estate litigation occurs when the fiduciary fails to provide an accounting, or provides only a partial accounting.
Viewed by the beneficiaries as secrecy, distrust can run rampant as years of family dynamics come into play. Beneficiaries believe that the fiduciary has breached his duties, even when in fact he may not have.
They tell one another “he was always jealous of us because he wasn’t as close to Mom as we were” or “he thinks he’s smarter than us and that we won’t know what he’s up to.”
Often the fiduciary has not mismanaged the estate, but has failed to provide an accounting because “they won’t read it anyway” or “being Mom’s executor has been a lot of work, and I don’t have the time to provide an accounting.”
A simple solution to this dilemma is for the will or trust to require an accounting on a regular basis.
In summary, estate litigation can often be avoided if your wishes are clearly communicated in your will and/or trust, and if your choice of a fiduciary is based upon thoughtful consideration to family history and relationships.
Jack S. Jennings is a trial lawyer with Thompson, Meier & King, P.C. in Canton. He is a graduate of the University of Virginia and the Walter F. George School of Law at Mercer University.