There have been several articles about the economy causing more contested probate cases. Here’s one and here’s another.
I disagree that the recession is causing more cases. I have long thought that it is the changing make-up of the family that causes families to fight over family assets. In the past, mom would marry dad. They would have children. They would die and the children, all brothers and sisters, would settle the estates with very little arguing.
Today, that situation is the exception rather than the rule. Now, mom marries dad. They have children. They get divorced. Dad remarries and has children with the new wife. Mom remarries a man who has children by another woman. Instead of brothers and sisters settling the estates, it is brothers, step brothers, half sisters and ex-spouses. Today’s family doesn’t have that blood bond that they had in the past. Their loyalties may go in many different directions.
Many times, a person doesn’t want to make a will because he or she has these extended families and doesn’t want to hurt anyone’s feelings. They may be closer to a step child than they are to their own children. The effect of not making a will is to hurt everyone’s feelings. When there is no will, there can be a free-for-all battle over the estate. Everyone involved can end up hating everyone else.
Just as only grandma or grandpa can get the family together for thanksgiving, they are the only ones who can hold the family together after their deaths by having a will so there will be no fighting. While there can still be a fight over assets if there is a will, a fight is almost guaranteed if there is no will or if there is a poorly drafted one. Trying to make your own will leads to disasters in these situations. I think that it is rare for a person to make their own will without making mistakes. Since wills have to me made and executed within strict guidelines, you should always let an attorney handle the will preparation.
We don’t prepare wills so this is not a plea to come in and hire us to prepare your will. Rather, it is a plea to make less work for us by avoiding a contested probate case. Make a will and keep it up to date!
UPDATE: The Minnesota Public Radio website referenced this article in their article about probate in this recession. One of the things that they said caught my attention. That is that “Money, death and human emotion typically don’t do well together but all three are in the room in probate, the process of settling a dead person’s estate, paying bills and distributing any assets.” Probate is not unlike a divorce. Emotions are high, everyone is thinking of their own interest and nobody wants to be left with less than the others. And that’s in a non contested probate matter! Imagine the emotions in a contested probate case! Avoid contested probate if you can and you can go a long way in accomplishing that goal by having an attorney review your situation and prepare a will for you.
One of the big problems I see is that spouse or one child prevails on feeble older person to make a will or trust change in their favor. Older person doesn’t want to deal with discord. Older person never communicates to all the heirs a coherent estate plan because older person knows that there is no plan to make all heirs happy and leave him or her in peace. Therefore the heirs have contradictory expectations and both sides in a will or trust contest genuinely believe that the decedent was bamboozled by the other side.
This situation is further complicated if older person has a long illness or physical disability before death. Now the primary caregiver feels entitled to revision of the estate in their favor and the other heirs feel the primary caregiver abused the position to unduly extract a bigger portion of the estate. These are tough situations.