There are several actions that a parent can take to decrease the chance of a fight after their 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 heirs equally, with the same amount left to each heir. Others decided to divide their estate “equitably,” in some other way that is considered fair.
For instance, let’s say a parent would like to leave the family home to their only daughter. Without additional information, it may not be clear if the parent is planning to leave the daughter only the home while the other assets will be distributed to their sons, or if they intend to distribute their assets unevenly among the children.
If the home is valued similarly to whatever other assets the parent is leaving their sons, there may not be a fight. But if the house represents most of the parent’s net worth and the sons’ inheritances will be much smaller, it could create hard feelings, which may prompt the sons to bring an action in probate court.
It is important to note that a person can’t contest a trust simply because they think the inheritance is unfair. The trust contest must have some other legal basis. In California, the primary reasons to contest a valid trust are either because the decedent lacked testamentary capacity or was subject to undue influence.
If you are looking to avoid a fight, an attorney can help draft a trust that will prepare in advance for either of these grounds for a trust contest. As far as testamentary capacity is concerned, an attorney should test the parent before allowing them to sign the trust. Another option would be for the parent to tape a video that shows them signing the trust. This would make it more difficult for their sons to claim they didn’t have mental capacity.
The parent can also include language in the trust explaining why the inheritance isn’t equal. If they see the reasoning behind their decision—and it’s rational—the sons may be less likely to allege undue influence. To that end, the settlor may want to prepare a letter of intent to explain their reasoning. Although this is not a legal document, it may be helpful to show their intent in case the trust is contested.
Another option that can be used in some states is a no-contest clause. A no-contest clause states that if an heir challenges the trust and loses, then they will get nothing.
Another option would be for the parent to change the deed to their house to a life estate deed.
An estate planning attorney needs to be consulted to prepare the estate plan with the parent so that they can be sure that their wishes are followed. The attorney will also be able to provide some helpful insight into 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?”