Because of the financial and emotional toll imposed by probate and trust litigation, every reasonable effort should be made to avoid such litigation.  Retaining experienced estate planning counsel is an important first step in enabling families to avoid costly and protracted trust and probate litigation.  A building with a firm foundation is less likely to face the possibility of collapse.  However, the owner of the house, who gives the builder instructions, also bears responsibility for the result.  Experienced estate planning counsel will advise regarding how to minimize the chances of estate litigation.  If that advice is disregarded, the instructions given to the estate planning counsel may result in a will or trust with provisions that are unreasonable, inconsistent, or likely to cause conflict.  However, even a first-rate estate planner is not a guarantee against litigation by some conflict-prone or irrational relative, just as a sound foundation of a house may not protect it against the ravages of an earthquake or other natural disaster.  Nonetheless, retaining experienced estate planning counsel is an excellent first line of defense in avoiding probate and trust litigation.      

Identifying Competent Estate Planning Counsel

How does one find the right estate planning counsel who can help avoid litigation?  It may well be the attorney who has been advising your family for years.  You want an attorney who is experienced and can see likely problems before they materialize.  You want someone who has no conflict or interest and will not be perceived to be giving advice based upon personal relationships with other family members.  Not every estate planning lawyer can have gone to a prestigious law school, be a partner in a top law firm, have the highest ratings on Internet attorney sites, lecture at educational programs for fellow attorneys, belong to prestigious estate planning professional organizations, have written books and articles on estate planning, and been recognized for excellence by his or her peers.  But if the value of the estate is substantial, it is not unreasonable to look for an attorney with substantial estate planning experience and at least a modest record of achievement.  Having a lot of experience with probate and trust litigation arising from his or her own planning work may not be the best indicator, since the ideal estate planning attorney minimizes such outcomes.

A Sampling of Litigation Avoidance Techniques for Experienced Estate Planning Counsel

While good draftsmanship of wills and trusts is certainly a necessity, it is equally important that estate planning counsel know everything that he or she needs to know about the client’s property and business interests, mental and physical health,  and relevant personal and family relationships.  Armed with this knowledge (usually recorded in meticulous notes of meetings held with the client requesting the will), litigation avoidance measures may be taken.  If, for example, the family thinks Aunt Clara is applying undue pressure to get a large bequest, perhaps she should not be present during the estate planning process and the will should not be drafted by her niece, the personal injury lawyer.  If the will is for someone who is 95 years old and there will be foreseeable claims of lack of testamentary capacity, an examination by the appropriately qualified medical professional, shortly before the will is executed, might be helpful.  Sometimes an estate planning professional will discuss with his or her client the possibility of having a family meeting to discuss the estate plan or, perhaps, the option of leaving behind a letter, written by the client and to be opened after the client passes.  Such a letter might, for example, explain why nephew Herbert, who almost bankrupted the family business, is getting a spendthrift trust and not the stock he wanted in the family business.  Less frequently used litigation avoidance techniques include videotaping parts of the estate planning process, the use of multiple wills executed at intervals, or including a clause in the will penalizing with a lesser bequest any beneficiary who challenges the validity of the will.  Some of these measures can be two-edged swords and can backfire when employed by the less experienced estate planning attorney.  Lastly, when a probate or trust litigation seems highly likely, an alternative may be to seek mediation or use the collaborative approach discussed in a prior blog.

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Most trust and estate litigations can and should be avoided. The financial and emotional toll of probate litigations is much too high.  Estate planning professionals are trained to optimally preserve, protect, and transfer wealth–not to suffer as bystanders while their clients’ wealth is dissipated through costly courtroom battles. Some planning professionals also have formidable courtroom skills, but not many possess the full spectrum of skills necessary for successful probate litigation avoidance. All know that when it comes to avoiding will contests and fiduciary disputes, an ounce of prevention is worth a pound of cure.

The Collaborative Approach

One method of minimizing later conflict is to adopt a collaborative approach to inheritance litigation avoidance. This calls for a multidisciplinary collaborative approach calibrated to the magnitude of the assets involved. Which disciplines should be called upon will depend upon the particular family situation. Valuable contributions may be made by business advisers with expertise in family businesses, wealth managers, psychologists and social workers, eldercare professionals, and highly experienced litigators who can recognize danger signs and propose solutions.

Working as a team with the estate planning professional a “threat assessment” can be made, trouble spots identified, and creative solutions devised. In some instances this interdisciplinary team may be most effective working with and through the estate planner. In other instances some or all members of the team may be called upon to work directly with the potential or actual disputants. It may sometimes be helpful if the group, including counsel, pledges no involvement in any subsequent litigation if agreement cannot be reached.

Early Intervention Desirable

As regards timing, the earlier the intervention, the better. Each family situation is unique and there are no cookie-cutter solutions. In those situations that are headed for conflict, the estate planner may see the storm clouds on the horizon while the testator is still alive and well. In such instances there may be value in the testator explaining, for example, that a provision in the estate plan is not a sign that he or she favors one sibling over the other, but merely a recognition of their differing needs. Family counseling may help reconcile estranged relatives to the point where they will not need to act out their conflicts through estate litigation. A family business adviser may offer proposals for passing on a family business in a way that is both fair to all concerned, yet gives the business a chance to succeed. Perhaps an experienced litigator can identify the choice of a trustee, despite that person’s unquestioned competence, as a potential lightening rod for contentiousness due to his or her perceived favoritism toward one of the beneficiaries. The collaborative approach has been successful, at times, in avoiding matrimonial litigation. When selectively employed in the planning and probate context, it has a place in the avoidance of costly, public, and protracted trust and estate litigation.

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