2 Most Common Claims In An Estate Family Feud and What You Can Do About It

How to Avoid An Estate Plan Claim Within Your Family

Feuds within your family over your estate may occur whether you have a will or trust in place or not. There are common claims that can be made over an estate that can be prevented with the right plan in place. Attorney Margaret Barrett discusses how to ensure your wishes are fulfilled without any claims made against it.

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What You’ll Learn From This Video

• Why your estate plan may cause family rifts or claims

• When to seek the help of an attorney to prevent possible claims

• What you can do to prevent a claim against your estate plan

HERE IS THE TRANSCRIPT FROM THIS VIDEO

Margaret Barrett: Family Feuds after a death are nothing new, they have been happening for centuries. But in recent years, the number of estate battles have increased significantly. Estate battles can occur whether there is a will or trust, or no will nor a trust. Battles occur over smallestates as well as large estates.. Even if your family gets along now, this is a crucial reminder to take steps to minimize the chance that your family is torn apart by fighting after you are gone. And that your wishes are fulfilled. Today, I’m gonna tell you about the two most common bases for objections to estate plans. First, lack of capacity. This claim is that you did not have the required cognitive ability to understand and sign your estate plan when you signed it. In Minnesota, the legal standard for capacity for signing a will is actually pretty low. You just need to know what your assets are, who your children are if you have them, and where you want your money to go when you pass away. The law also recognizes that capacity can vary from day to day or even in a day. For example, we may have a client who has capacity at the review meeting, but we find they have lost capacity at the signing meeting. We will sometimes have two attorneys in a meeting to assess capacity and strengthen the documents if we think capacity is an issue. What can you do to minimize an incapacity claim? First, make or update your estate plan now while there is no question about your capacity. Second, work with an experienced estate planning attorney. Even an elder law attorney who is going to make sure that you have capacity and that the file is well documented to show how you demonstrated capacity at the signing. The second most common basis for objecting to an estate plan is undue influence. This means that someone exploited or took advantage of the person making the will or trust. To prevail on this claim, the person objecting needs to show four things. First, they need to show that the will was distributed in unexpected ways. Second, that the will maker trusted or depended on the other person, could be a family member, a friend, even a lawyer. Third, the influencer needs to have benefited from the change. And fourth, the will maker needed to have been frail or ill or otherwise susceptible to influence. To minimize the chance of an undue influence claim, you will want to work with attorneys who are experienced and proactive about doing all they can to guard against an undue influence claim. For example, if a child calls our office to make an appointment for mom and dad and brings mom and dad to the appointment, maybe helps them with the paperwork, is maybe appointed in the paperwork to handle a role, and is receiving some money, we are gonna be very careful in that situation. Weare gonna make sure at each conversation that the child and the parent understands that the parent is the client, that the parent is calling the shots, that the child can be involved to the extent the parent wants them and they are helpful to the process. And lastly, we will spend some time alone with the parent or parents at each meeting and ask them questions to demonstrate that as far as we can tell and as far as the client tells us, there is no influence happening. The kind of precautions that we take can minimize the chance that you will have a lack of capacity or undue influence claim against your estate and minimize the effect of such a claim if it does come. If you are worried about avoiding a family feud after you’re gone and avoiding a will contest, please call us today. We would be happy to help you take the next step.