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Strategies for minimizing the risk of estate litigation

On Behalf of | Jan 30, 2021 | Estate Planning

Nobody wants the death of a loved one to turn into a family feud among the survivors, but money can do strange things to people. As well as you know your relatives, you will never know for sure that one of your family members might not object to the way your assets get distributed after you pass away. Not only could a lawsuit cost your estate significant money. It can tear a family apart, causing resentment and hurt feelings that last for years.

While you cannot guarantee that there will not be litigation over your estate in a New Jersey probate court someday, there are things you can do to minimize the risk. Here are three tips to help reduce the chances of future estate litigation.

Draw up a valid written will

Some people believe that as long as they have talked about their final wishes for their property with their families, their assets will be distributed without problems. But probate courts rarely accept oral wills. New Jersey’s intestacy law decides who will inherit your assets if you die without a valid will. That could lead to unwanted results and potential litigation.

There are certain rules for creating a will that the probate judge will accept. One of them is to write down and date your will. An estate planning attorney can work with you to create and execute a will that makes your final wishes clear. That clarity can eliminate confusion and different interpretations among your loved ones.

Avoid probate as much as possible

When someone dies, their will and property must pass through probate, a potentially lengthy legal process. The longer your estate is in probate, the more opportunities there will be for someone to file a lawsuit.

Removing as much of your property from the probate process is, therefore, a great way to reduce the risk of litigation. This is often accomplished using a revocable trust, which transfers ownership of the property to someone else (a trustee) to hold for your benefit during your lifetime. Then, when you die, because the property no longer belonged to you, it does not go through probate. Challenging a trust can also be more expensive than a probate court suit, which causes many people to think twice about doing it.

Other ways to keep your assets out of probate include making gifts during your lifetime and creating joint ownership of property, which gives your joint owner the right of survivorship over the property if you pass away first.

Make an advance directive and designate powers of attorney

Many will disputes arise because the decedent changed their will late in life. Questions about the decedent’s mental capacity and whether they were pressured by a new heir can arise. An advance directive and powers of attorney can alleviate those concerns. An advance directive sets out the extent of medical intervention you would want during a medical emergency or if you become incapacitated and unable to speak for yourself. Medical and financial powers of attorney are trusted individuals who step in to make health and financial decisions for you in case of incapacity. While you are still relatively young, having these in place can help prove that changes to your will are not invalid.

Smart estate planning now can protect family harmony after you are gone.