The Way To Keep Your Kids From A Probate Fight After You’re Gone

Every family is different, but we see a recurring problem with many who have more than one adult child. It is the sense of entitlement to an inheritance. As most of us understand, you can do anything you want with your estate plan. Some famous people left everything they had to a cat or dog. Other aging parents may decide on an unequal distribution of their assets among their “natural heirs”, their kids. Others give exactly equal amounts to all their kids, even if some are well off and some really need the money or property more than others.

Is There A Rule About This?

There is no legal requirement that anyone give anyone else money or property when they pass. Basically, the law says that as long as you understand what you’re doing, you can give your assets to anyone you feel like giving to, equal or not. That seems to be the point some adult children don’t understand. At AgingParents.com, where we consult with families about age-related issues, we see that sense of entitlement play out when the matriarch or patriarch decides on unequal distribution of assets, particularly the family home.

Fights About Inheritance

We have no say about how adult children, potentially heirs, will behave when one perceives that a sibling is getting more inheritance than is “fair”. Fairness is not a legal requirement in a will or trust. However perceived unfairness is like an invitation to a lawsuit after aging parents pass. Greed, resentment, and old conflicts may all surface if Johnny is getting Mom’s house and Billy is left out. In our work, we see some valid reasons why an aging parent chooses to disinherit an adult child. The adult child who never visits, seldom calls and does not help the aging parent at all can lead to the parent’s hurt feelings, resentment, and anger. Eventually the elder may choose to decrease or eliminate a gift after death to that adult child. It is the aging parent’s way of saying they did not want to reward what they see as bad behavior or neglect.

Imagine that son Billy, learning that he is left out, gets enraged, hires a lawyer and alleges that brother, Johnny, forced Mom or unduly influenced Mom to change the will or trust. Sadly, these fights can devour a great deal of cash from the estate, just for paying attorneys on both sides of the conflict. Funding the lawsuit or defending it regularly comes from the estate, not from the ones who started the fight.

Solutions To Avoid Ugly Court Fights

1. Personal responsibility. Aging parents can be straight and speak up if they are angry about an adult child’s lack of attention to them or failure to help with needed care. If son, Billy never shows up, be honest and tell him it upsets you. If your feelings are hurt, communicate the truth. Ask for what you want and need from other family members. At least Billy will know he’s not in the aging parent’s good graces if nothing changes after an open conversation and request you make of him.
2. Have a family meeting, preferably guided by a professional mediator, to get the truth out into the open. Make sure all the plans about the estate are transparent. There is little benefit in keeping the aging parent’s estate plans secret. This may be uncomfortable, but if you don’t say what you want to say about who will inherit or who may get less than another heir, you are inviting a fight in probate courts to let someone else decide about your estate. No one needs that!

In one recent case at AgingParents.com, the widowed matriarch decided to give her high-value house in its entirety to one son, and not to leave any part of it to her other three sons. The favored son had moved in with his Mom to help her, provide all daily care and transportation. The other sons rarely visited and did little to assist with all needed chores in the house. We assessed her, as her estate planning attorney requested to see if she was mentally competent. CA requires that an independent attorney evaluate the elder to determine whether there is fraud or undue influence by the intended recipient of the proposed unusual gift. We found that this matriarch was very sharp in her 90s and she was not being pressured nor influenced by her son to get the gift of her home.

After the determination that there was no fraud or undue influence, she did change her trust. She was clear that she wanted the one son to get the house, a departure from how the trust was written previously. We urged her repeatedly to call a family meeting so that all four siblings would know what was planned. She could explain her reasoning herself. We did not learn if it happened or not. She was at least warned that she was setting up her kids for a probate fight after her passing if she was not transparent about her plans. We remained hopeful that she would take that step.

We hope that aging parents in your family choose transparency as well. Should there be a plan for an unequal distribution of any estate, this can be a critical step to avert expensive battles over why it is so. No one wants to think of their hard-earned money disappearing into the lawyers’ hands when a battle can be avoided.