“I don’t want my children fighting over my estate” is a concern voiced by many people we meet with about their will or living trust planning.
There are several actions a parent can take to decrease the chance of a fight after her death, says nj.com in its recent article, “My brothers might start a fight over mom’s will. What can she do about it?”
Trying to decide how to divide property is a common estate planning challenge. Some people decide inheritances should be split among beneficiaries equally, with the same amount left to each. Others decide to divide their estate “equitably,” based on perceived need or in some other way that is considered fair.
For example, suppose a mother wants to leave the house to her daughter. It may not be clear if the parent is looking to leave her only daughter the house and other assets to her sons, or if she plans to distribute her non-real estate assets unevenly. If the home is valued similarly to whatever other assets the parent is leaving her sons, there may not be a fight.
However, if the house represents most of the parent’s net worth and the sons’ inheritances will be much smaller, it could create hard feelings.
The brothers can’t contest the will simply because they think the inheritance is unfair. In Maryland and the District of Columbia, the primary reasons to contest a valid will are either because the decedent lacked testamentary capacity or was subject to undue influence.
An attorney can help draft a will that will prepare in advance for either of these grounds for a will contest (will caveat proceeding). As far as testamentary capacity is concerned, an attorney should be confident that the parent is capable and acting of his or her own intention before allowing a will or living trust to be signed.
If mental capacity is a concern, having the client bring witnesses who have known the client for many years, and who have known the family, is helpful. This would make it more difficult for her sons to claim she didn’t have mental capacity.
To reduce the odds that your children will fight over the estate, a parent can also include language in the will explaining why the inheritance isn’t equal. If they see the reasoning behind her decision—and it’s rational—they may be less likely to allege undue influence.
She may want to prepare a letter of intent to explain her reasoning. This is not a legal document, but it may be helpful if the will is contested.
Another option is a no-contest clause. While of questionable enforceability, they can be a discouragement from filing a challenge. A no-contest clause states that if an heir challenges the will and loses, then he or she will get nothing.
Another option would be for the parent to change the deed to her house to a life estate deed or place the home in a living trust.
With proper care and planning, you can settle your children’s potential fights over your estate before you die.
An estate planning attorney needs to be consulted to prepare the estate plan with the mother so she can be sure that her wishes are followed. The attorney will also be able to provide helpful insight on the family dynamic.
Reference: nj.com (May 3, 2019) “My brothers might start a fight over mom’s will. What can she do about it?”
