Unfortunately, inheritance disputes are not just a problem for the rich and famous, or for blended families. Even when there’s little or no wealth at stake, or no second marriages with children that are “his, hers, and ours,” survivors still disagree about issues such as the disposition of sentimental personal property, who should be responsible for raising the deceased’s minor children, even who gets the dog.
Three of the most frequent causes of inheritance disputes are as follows:
- Failure of Intentionality: We’ve all seen dramatic scenes on TV or in movies where a surviving family is tensely gathered in the attorney’s office after a relative’s funeral. As the lawyer finishes reading the will or trust, someone faints or rises up furiously in protest, claiming “That’s not what he intended!” In short, they believe they’ve been left out of a bequest by accident. These mistakes may result from lack of coordination of estate documents and inherent property rights, or a failure to keep estate plans current with changing tax laws or family circumstances, such as divorces, adoptions or births. Sometimes, the dispute arises simply as a result of poor communication, written and verbal, between family members.
- Perceived Inequity: Even where family members are included in the bequest, they may perceive they have been shortchanged by the decedent’s stated intentions. A common scenario runs as follows: an adult daughter takes on the burden of caring for an elderly relative through a terminal illness, using her own resources, income, or assets for the care. When the ill relative dies, however, she and her siblings are devised equal shares in the decedent’s estate – a typical disposition in families where there is more than one child. Alternatively, one child has borrowed a significant sum of money from a parent, but when the parent dies, the amount of the outstanding loan is not deducted from the borrower’s share. In both of these instances where the estate is left equally, it still does not appear equitable at least to one beneficiary.
- Wrongful acts either during or after the decedent’s lifetime. Sometimes beneficiaries discover after their loved one’s death that their relative was subject to financial mistreatment during his lifetime. For example, a health care aide convinces an elderly patient to give her power of attorney over the patient’s checking account and the abuse becomes evident when an inventory of assets is taken after the patient’s death. Or an estate executor or trustee breaches his or her fiduciary duty by mismanaging assets, self-dealing, or over-charging for services.
So the question becomes, what can a would-be or should-be beneficiary do if he or she feels short-changed?
First, there’s the option of going to court. To do so, however, the aggrieved party must have legal standing as a beneficiary of the decedent, as a creditor, or a legal claimant against property in the estate. This would include anyone who is actually named as a beneficiary in the estate documents as well as anyone who would have a right to the estate if the will were deemed invalid or did not exist. Thus the deceased may have had every intention of excluding his wayward son from an inheritance, but if this intention is not made explicit in the estate documents, the son’s case can be heard in probate.
Also necessary to initiate a court hearing is evidence that the terms of the estate plan – be it beneficiary designations, wills, or trusts – were somehow improper. This evidence might be medical records documenting a testator’s mental incapacity at the time of making the will, or proof that the decedent was subject to coercion or fraud in the management or disposition of his assets. Sometimes the necessary evidence comes in the form of a newly-discovered will or trust that preempts an earlier document. Or, alas, the last document was not signed or properly executed, meaning that the estate distribution is determined by an earlier signed document that no longer reflected the decedent’s will.
Second, there is the possibility of legal mediation outside of court. This involves using a trained mediator, often an attorney, who seeks to forge a contractual agreement among the affected parties. There is no requirement that such an agreement be reached, and the mediator is not allowed to provide legal advice to any of the parties. Instead, parties may bring their own counsel to the mediation, though this is not necessary.
Mediation is often a good solution for smaller disputes, or in cases where confidentiality is paramount. No matter how strong the case or solid the evidence, some inheritance challenges are simply not worth the pleading. There is the practical matter of balancing the costs of a court-adjudicated lawsuit with the expected benefit of a favorable settlement. There is also the potential for protracted litigation to fracture a family beyond repair.
The third solution is not, in fact, remedial but preventive. Truly the best way to deal with inheritance disputes is to do everything possible to make sure they never happen. This means rethinking how good estate planning works. Rather than being a “once and done” exercise that you do when you get older, estate planning needs to be ongoing, frequently reviewed and revised to keep pace with changing circumstances and family dynamics.
It also means communicating frequently and clearly with your loved ones while you are alive rather than relying just on a written document that becomes operative when you die. Sharing with your heirs and beneficiaries your intentions and hopes for their future can head off later disagreements as to what Mom or Dad “really” wanted. Being alert to the potential for disputes, for example, in cases of entrenched sibling rivalry or family feuds, can be invaluable information to give to an estate planning attorney to ensure your documents are drafted to limit the possibility of challenge.
In the case of Robin Williams, it would seem that an ounce of prevention would now be worth a pound of cure. If only Robin had made it clearer who was to get the memorabilia items in the home he shared with his wife, perhaps the family today could grieve privately and quietly together, with the rest of the world.