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  • Home
  • About Us
    • Gratia Schoemakers
      • Community Outreach Program
    • Testimonials
  • Virtual Services
  • Estate Planning
    • Estate Planning Basics
    • Last Will and Testament
    • Revocable Living Trusts
    • Durable Power of Attorney
    • Medical Power of Attorney
    • Living Will
    • Family Estate Planning
    • LGBTQ Estate Planning & Asset Protection
    • Kids Safety Plan™
    • Business Succession Planning
    • Guardianship
      • Guardianship Planning
    • Special Needs Planning
    • Legacy Preservation Planning
    • Asset Protection
    • Trusts
    • Pet Trusts
    • Gun Trusts
  • Probate
    • Texas Probate Guide
    • Probate of a Will
    • Texas Affidavit of Heirship
    • Texas Small Estate Affidavit
    • Texas Heirship Determination
    • Texas Muniment of Title
    • Trust Administration
  • Family Law
    • Divorce
    • Collaborative Divorce
    • Mediation
    • Custody / Visitation
  • Blog
  • FAQs
    • FAQs – Videos
    • FAQs – Estate Planning
    • FAQs – Beyond Money in Estate Planning
    • FAQs – Divorce and Estate Planning FAQs and Myths
    • FAQs – Estate Planning for Newlyweds Myths and FAQs
    • FAQs – Estate Planning for Young Adults
    • FAQs – The Estate Planning Cast of Characters
    • FAQs – Expecting an Inheritance
    • FAQs – Myths and FAQs – Planning for Conflict Prone Families
    • FAQs – New and Expanding Families
    • FAQs – Pet Trusts
    • FAQs – Probate
    • FAQs – Standalone Retirement Trust Myths and FAQs
    • FAQs – Trust Modifications
    • FAQs – Unwinding Obsolete Planning
    • FAQs – Why You Want to Avoid Probate
    • FAQs – Year-End Planning Myths and FAQs
  • Contact
    • Virtual Estate Planning Login
    • Client Portal

The Harmonious Family that Won’t Fight? The Outcome May Surprise You

January 7, 2021 By Gratia P. Schoemakers, Esq.

Most families are happy families.  They get together for the holidays, share laughs, and tell stories.  Everyone gets along and enjoys each other’s company.  Then, the matriarch or patriarch dies.  Suddenly, years of pent-up resentment and hurt feelings bubble to the surface, and the once-happy family is now embroiled in litigation over the decedent’s estate.

When everyone is alive and happy, it is easy to think that nothing will break a family apart.  Many people think that since everyone is getting along, estate planning is not needed because everyone will look out for one another and do what is fair.  However, it is crucial that you have a properly prepared estate plan.  Failing to plan not only takes all of the control out of your hands, it can also leave hurt feelings and possible confusion over what your true wishes were.  This confusion will force family members to the only source able to remedy the misunderstanding: the probate court.

While a lack of planning can lead to disastrous consequences, poor planning can be just as harmful.  Documents that are not up to date, vague, or improperly prepared can lead family members to challenge them.  If the documents are not clear, family members may have differing opinions as to the true intention of the decedent.  This is especially unfortunate for those with a trust: One of the primary reasons to have a trust prepared is to avoid court involvement.

If your documents are up to date and clearly state your intentions, but you worry that your decisions may displease your family, you do have the ability to include a no-contest clause that may prevent or limit challenges to your will or trust.  A no-contest clause is a provision that states that if a person contests your will or trust — whichever document contains the clause — and is unsuccessful, they will receive nothing.  However, their effectiveness can vary from state to state, so if you think your family might contest your wishes, it is incredibly important to seek the help of an experienced estate planning attorney.

One common situation where contests can arise is when someone is left out of the will or trust.  If you want to intentionally disinherit a family member, consider leaving them a nominal amount at your death and using a no-contest clause.  By doing this, if the contest is unsuccessful, the family member has something to lose.  This may discourage them from contesting your wishes in the first place.  However, as previously mentioned, you need to work with an experienced estate planning attorney to make sure that this strategy is the best one for you based on your state’s law and your family situation.

As an alternative, if you are concerned about a beneficiary receiving a sum of money outright because of creditor issues, spending habits, etc., you do not need to disinherit them.  By utilizing a discretionary trust, you can set aside money for the individual that is distributed to them when and how you determine.  Leaving money to a family member does not have to be an all-or-nothing decision.

Regardless of your family situation, it is incredibly important that you have a well-drafted, up-to-date estate plan in place.  Will or trust contests can be very costly and can quickly drain the estate or trust, which means your loved ones will end up with less than you intended.  We can assist you in creating an estate plan that will ensure that your wishes are carried out and that harmony can be maintained within your family after you are gone.  Contact us or give us a call today to schedule an appointment.

Filed Under: Estate Planning, Wills, wwPROBATE Tagged With: Trust Contest, Will Contest

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