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The Risk of Estate Litigation [How to Plan Your Estate to Avoid It]

Many of our readers, who are also clients, may know that I am not part of the genre of attorneys who enjoy litigation.  On the contrary, over the years I’ve gone to great lengths to assist clients in avoiding court action whenever possible.   I also am committed to counseling clients when doing estate planning in Florida to take all reasonable measures to prevent estate litigation risk from happening.  For example, there is a way to counsel clients in estate planning so as to minimize the chance of conflict between family members in an estate plan.  This attitude might put me in a minority of attorneys and that is absolutely the way I like it.

To me, good mental health and maintaining an optimistic, grateful existence is much more important than profiting from the conflict of others. I consistently encourage clients as well as my colleagues in the profession to adopt this approach to promote wellness and the greater good.

With that in mind, this week’s article offers a peek into the world of estate litigation risk and a few solutions to lessen the estate litigation risk when doing your estate planning.

Root Causes of Estate Litigation 

Estate litigation often begins with a lack of communication or an uncooperative relationship, possibly resulting from a relationship breakdown, that becomes compounded by the grief of losing a loved one.

When Family Members “Lawyer Up”

The estate litigation process begins essentially during either the probate process in Florida OR during the process of a Florida trust administration, when one or more of those interested parties in the estate “lawyer up” after claiming a grievance such as being entitled to more of the estate assets or that the one in charge is behaving improperly.

Exploding Legal Fees and Costs

Estate legal costs simply explode when estate litigation ensues.  Generally, when the attorney for the trustee or personal representative receives a letter from a beneficiary’s attorney demanding some sort of action, the entire fee structure will be likely to change. Whereas trust administration and probate can be often handled for a reasonable flat fee, litigation almost always requires a hefty retainer deposit for handling a legal dispute.

If the attorney for the successor trustee of a Florida trust or the personal representative of the last will in  a Florida probate estate doesn’t handle litigation matters, then the trustee or personal representative may need to seek other legal counsel experienced in estate litigation matters.   Of course, the aggrieved beneficiary is also tasked with paying the retainer fee for his/her attorney and generally this starts at around $5,000.00.   In a nutshell, if documents are filed in court, the litigation process begins and the legal fees and costs can compound into hundreds of thousands of dollars. Have we established that this scenario is worth taking some steps to avoid?

Estate Planning Measures to Lower the Risk of Estate Litigation

The key preventative approach is to create estate planning that essentially forces people to work together and thus encourages cooperation and communication.

I make this point at the risk of appearing naive.  I do understand after having dealt with hundreds of families over the years that relationship breakdowns can run very deep and this means that even the best plans may not bring loved ones together.  However, I also know that a fair and “communication oriented” estate plan can go a long way toward eliminating the risk that old conflicts will escalate to the level of estate litigation.

Taking steps to eliminate sibling rivalry in your estate plan is also extremely important as a litigation prevention measure and the steps outlined in that article should be considered as well.  This issue can of course extend way beyond siblings to involve grandchildren and nieces and nephews.

I encourage clients to consider the question:

How is my estate plan promoting harmony by bringing people together?  

How can harmony be accomplished.  At this point, I can only offer suggestions because every family situation is as unique as the individuals.  Perhaps appointing a niece and nephew from different sibling-parents as co-Trustees will foster communication between the entire family and create a sense of fairness  because different sides of the family are represented.   Perhaps a neutral third party such as a family friend who is loved by all the family members can serve as trustee, and even as a mediator, and thereby prevent needless inter-family disputes.

The possibilities are really as endless as the creative ideas that arise during your estate planning “brainstorming” session.  Remember that this process may take some energy and determination but it is all about giving happiness and well being to your loved ones.

Steve Gibbs, Esq.

This is an updated version of an original post dated October 6, 2016. 

2 comments… add one
  • Scott Burry March 2, 2022, 12:26 am

    Is there a requirement that for a successor trustee to take over, before a trustor dies, that there be a letter from two independent doctors stating that the trustor is incompetence, or can the successor trustee simply take over because they think or believe its time to take over?

  • gibbslawfl March 3, 2022, 3:18 pm

    Hello Scott, to your latter question the answer is no, the successor cannot just take over. If the initial trustee’s competancy is in question, the trust document should establish whether 1 or 2 doctors are needed. Usually it is 2. You would need a consultation and review of the trust and facts in order to make a decision.

    Best, Steve Gibbs, Esq.