Why Estate Disputes Start

Brenton Begley 0:10

Hello and welcome to the Elder Law Report. My name is Brenton Begley. I'm joined by Attorney Jane Dearwester. Hey Jane.

Speaker 1 0:18

Hi there.

Brenton Begley 0:19

Today we're going to talk about estate disputes and what causes disputes over someone's estate. So to give you a little context, talking about if someone passes away, the heirs or interested parties of that person's estate getting into some type of legal action, some type of litigation, some type of legal dispute after that person passed away, what would be the catalyst? What would be the thing that would cause something like this to happen? And certainly we've had a lot of experience with these types of cases, Jane. So in your experience, what do you what do you think? I mean, I know there's many things, but what comes to mind first is, you know, when you're sitting down with one of these cases and you're you're saying, man, if only they would have done X or if only they would have done Y, right? What are those, what are the if-onlies that are popping into your mind?

Jane Dearwester 1:17

Yeah, I think the first one that comes up for me is when someone sits down and puts their estate plan, their will together, if they keep it secret and don't tell anybody in the family, first of all, that they even have a will, right? That they've even put their thoughts down in writing and met with an attorney, um, that they have a will and what their intentions are, if they keep that very close and don't ever mention what happened or if there's going to be an unequal distribution, in other words, to say, hey, son, I'm gonna give you the house, but I'm gonna give my daughter, you know, the lake house or this other asset. I just, you know, want you all to know, and there's no requirement that you have to disclose, right, what what your thoughts are or or what you put down in your will. But I think that lack of dialogue within the family unit and within uh your family and in your heirs, within your immediate family, not having a conversation that you have a will in place and the basic tenets of what that will does, that can lead to confusion. I can think of one case we're working with immediately where we had an individual that kept everything private. He told no one, the family members didn't even know he had a will, they had no idea what he was doing with the will. And then when he passed and it came out that he was leaving everything to his niece and nothing to his siblings, the siblings filed a caveat or a contest of that will saying there's no way this is what he meant to do. And the person we need to ask, unfortunately, is no longer around. So it led to this dispute among the family members that we ultimately resolved by consent, but we can't always uh get parties to agree by consent. And so just that very simple thing of letting your loved ones and family members know I have a will. Here's basically what it says. At least they have a heads up and they're not surprised after you pass away what those terms are. So I think just having those conversations first and foremost can alleviate a state litigation after your death.

Brenton Begley 3:42

Right. You know, the being surprised thing, I think, is one of the main catalysts towards bringing any type of action or seeking out an attorney because you feel like there's some type of betrayal there. And a lot of times the heirs don't want to point at the decedent and say they did something wrong because that person has passed away. And a lot of times, too, it's not because the decedent did anything wrong, it's just that hey, it's you know, private matter or a sensitive topic that they don't want to talk about. I know a lot of clients that I've sat down with have had a hard time talking about what may happen after they pass away. It's a it's a topic they don't like to broach. It's something that I've routinely walked thousands of people through, but without someone like me who's had that experience, without someone like you, Jane, with who's had that experience, getting that information out of people, creating space where it's a you know, at least a somewhat comfortable conversation to have, it can be very difficult to broach these conversations. So a lot of times somebody who's made a will may not feel comfortable telling the other people, and certainly don't mean to make it a surprise for their loved ones whenever they pass away, but inevitably it does become one if it's not what the loved ones expected. And so if it's something that they don't expect, they're gonna feel some sense of, well, something is wrong here. I've been betrayed, someone did something. And then if they start looking at it and saying, Oh, well, you know, so and so was helping them, they brought them to the attorney, you know, they they they took them to the appointment, they were there when it was signed. You know, they're gonna start pointing fingers at that person saying, Well, maybe this person had undue influence over, you know, the the person who made the will.

Probate As A Dispute Magnet

Jane Dearwester 5:42

Yeah, it makes people start to feel paranoid, they maybe start pulling in facts that really aren't sinister, that, oh, they were spending a lot of time with mom right before she passed. That's pretty natural for most people if they have an ailing parent or grandparent that all of a sudden they start spending more time as a caretaker. That doesn't necessarily mean they're trying to get everything in the inheritance. However, sometimes there are people with bad motives who absolutely do exactly that. They realize rich grandma or grandpa or mom or dad is ailing, and they say, ooh, here's my here's my chance at a cash grab, and I'm gonna go in here and try to do something, and they can try to call me on it. So that's when I think the availability of a state litigation is so important to hold people accountable, these wrongdoers who are trying to take advantage of people in a vulnerable or compromised situation. It goes both ways.

Brenton Begley 6:48

That exists, you know, and and so you know, one way to really get ahead of it. One of the things that I try to counsel clients on all the time, and and we're successful in getting a lot of people to make sure they do this is if you want to protect your loved ones from you know somebody who is an envelope or you know, like a cash grab or or or someone who has ill intent, or just prevent there from being a litigation whatsoever after you've passed away, hopefully, um, is to avoid probate. Okay, that's one of the things that you can do, because probate really is a venue, it's an opportunity for anybody to throw their hat in the ring, disrupt the process, and really challenge that that process. Um, you know, because uh probate usually lasts anywhere from six months to two years, and um, because it it lasts as long as it does, and anyone can come in and pretty much challenge, it leads to a scenario where um, you know, everything's kind of in limbo as far as the assets until probate's over. So, you know, people feel as if they have the opportunity to go ahead and challenge them. Now, if assets have already passed immediately outside of probate because you've named beneficiaries or you put a trust in place, then it's really hard to unring that bell. Okay, it's really hard to you know put the horse back in the barn, toothpaste back in the tooth, whatever metaphor you want to use, it is hard to um to undo that.

Jane Dearwester 8:22

So yeah, the probate process is almost an invitation, it's a it creates a a venue, like you said, for disputes to happen because everybody gets notice. It's almost like you're invited. Hey, anybody have anything to say? Here's our here's your forum to say it in.

Picking The Right Executor

Brenton Begley 8:43

Exactly, exactly. So um, you know, so one thing to do is to make sure you set up your state plan correctly beforehand to adequately avoid probate, have good conversations. You know, the other thing that I see, Jane, that you've experienced as well is making sure you name the right person to be in charge of the estate. Yes, that can be a very divisive thing as well. So let's let's let's talk about what it looks like to name somebody as let's say an executor, they're in charge. What uh reaction might the other family members have if someone's named as executor?

Jane Dearwester 9:23

Yeah, people will think you're favoring that person or that child. And it really isn't. We we counsel people and sometimes they struggle. They have three kids and they're like, well, I don't want one, you know, to think I love them more than the other, but it it's not about who you love more or less. It's who is a trustworthy, detail-oriented, patient person who can do this job. You're really giving them a job to go through this process who is familiar with your assets, who is familiar with what you own, where your bank accounts are. And in most cases, there's one person, or maybe more than one person in your life that is familiar with that kind of thing, or who's good with numbers, who's good with paperwork. That's who you want. But ultimately, the person has to be trustworthy. You've got to trust this person. They're uh gonna be in this in this position of trust where they have to be doing things by the book and doing things orderly and on time. You don't want, you know, your 30-year-old son who still lives in the basement playing video games all day long. That might not be the person you want to appoint if they don't show this confidence for responsibility and showing up and doing the things timely and in proper order. So you do want to think about it's no shade to even choose someone outside your family. We see that happen very often. It's like, hey, I want my brother to do it. I want to do it.

Brenton Begley 11:02

A lot of people will choose somebody who is competent to do the job, but maybe a divisive fixture. Like, uh, you know, and you know who you're who's divisive in your family, right? There's certain people in my family I would not pick to be an executor of my estate because while I do trust them to do it, I do think they're trustworthy. I don't think that they would handle any sort of conflict or questioning them very well. Um, so that's one thing, you know, sometimes people try to solve the problem too by naming more than one executor at a time, which is generally a bad idea. Not always, but generally a bad idea because if they don't get along, then you ultimately have a dispute and you have two captains of the ship. Which direction is the ship gonna go in? No direction is the answer until the court removes both of them and puts somebody else in charge who's a third party, and that's ultimately not what you wanted for your state in the first place. Um and you know, a lot of this can be solved by good communication because when you do put somebody in charge as an executor, what I've seen is a lot of a lot of heirs who are concerned about the fact that somebody was picked as an executor and it wasn't them, and they're having a hard time communicating with this person or getting along with them, that somehow the executor can just dictate what happens in the estate. And to some extent, they have broad powers to um protect, preserve the assets of the estate, and to act in the best interest of the estate, but they have that guiding principle and they have to act in accordance with the will uh or the applicable law. So a lot of people don't realize that, and sometimes the executor that you pick doesn't realize that. Um, and so really, you know, like you said, it starts us off, the communication is so important to be able to prevent disputes after you pass away.

Jane Dearwester 13:13

Very much so.

Brenton Begley 13:14

Do you have anything else that anyone um listening should know about preventing disputes? Any any closing remarks?

Confirming The Executor Will Serve

How To Get Help And Next Steps

Jane Dearwester 13:22

I I just think again that you've got to be very candid and upfront and know that if you choose someone in secret and name them as your your executor, they don't have to do it, right? There's an affirmative process that this person, they have to, you know, fill out an application and submit it to the court and be qualified and be in some cases be bonded. And if they don't want to bother with it, then the estate plan you put in place kind of all for naught. And it's gonna drop back to maybe a successor person or maybe somebody you don't even know, a complete stranger. So just another reason to have those conversations and know that uh, you know, it's a process, it's very form-driven, like there's some help with it, but it's a process that this person is gonna be going through. And you just want to make sure you choose wisely and you know, have some discussions as you're going through and creating your estate plan to do it thoughtfully, very intentionally, and include those family members, important family members in that in that process.

Brenton Begley 14:28

Right. And, you know, if um if you're sitting down with us, one of the things that we're going to show you is how to adequately set up the estate plan so everything passes smoothly, automatically, without much need for an individual like a trustee or an executor to have much, if any, of a role in ensuring that that happens. Certainly, if you do put somebody in a position of trust like that, they'll have some things to do, but we want to limit that. For the most part, we want to put the estate on rails so it happens automatically, and that there's no opportunity like probate, no invitation like probate for anyone to make a dispute. So, that being said, um, if you have questions about your estate plan and how to set that up in the best way, there's an easy way to contact us. You can give us a call, um, 704-259-7040. You can also visit our website, which is mclderlot.com, where we have a um copious amount of uh articles and videos. I say that because we put out a lot of articles and videos, and we're not talking about just the same things. There's a lot of nuances in what we talk about. So if you type in trust, wills, powers of attorney, um, you're gonna see multiple videos and articles about that and the different important aspects of those. Um, so just like this information that we're generating on our Elder Law report, we also have done a lot of videos, a lot of articles, and um to go into detail about these things to give you adequate information to make informed decisions. Um, we've also written a couple books that are available on our website to download the ebook version for free. I would encourage you to do that as well. But there's nothing like the real thing, James, sitting down with one of us going over your particular uh situation, your family, your assets, and figuring out a way to preserve, protect those assets, and set up the estate plan in the best way possible. And to do that, all you need to do is schedule your free consultation by either giving us giving us a call again 704259-7040, or you can schedule online at mclberlaw.com. Thank you, Jane. Very informative. I'll see you next time.

Jane Dearwester 16:48

Thank you.