“Death is not the end. There remains the litigation over the estate.” – Ambrose Bierce
Fiduciary litigation – while it may sound like legal jargon – probably isn’t as unfamiliar as it seems. Maybe it’s the classic “Dad’s new wife got all the money, leaving us with nothing” or “Sister is handling Mom’s trust, but I haven’t seen a cent in years” or even “Caregiver convinced Dad to change his Will, and now the estate’s going to someone I’ve never even met!”
At the heart of it all is this: someone, perhaps a friend, family member, or even a stranger, in charge of managing or distributing assets (a fiduciary), has violated their duty or taken advantage of their position. And that’s when things get ugly.
We hear it from clients all the time: “Our loved one would be so upset to see the mess we’re in today.” So, what can you do during your lifetime to keep your loved ones from going through that mess when you’re gone?
The Key is Proper Planning
If you want to avoid your estate turning into a legal battlefield after your death, the best thing you can do is plan ahead. And no, that doesn’t mean filling out a few forms on LegalZoom or writing your own Will. Instead, you need a real, qualified attorney who can take a close look at your situation and make sure everything’s in order. A good estate planning attorney will spot the weak spots in your plan and make sure everything is solid for years to come. A good attorney will also review beneficiary designations and titling of your assets (the way in which you own your assets) to make sure there are no accidental inequalities, like forgetting to add a second child after their birth.
Choosing the Right People to Carry Out Your Wishes
Another important aspect of planning ahead to avoid a mess is selecting the right people to act as your fiduciaries – whether that’s someone to serve as your power of attorney, executor, or trustee. What should you consider? Fiduciaries should be trustworthy individuals who will act in your best interest and carry out your wishes properly. The wrong person in charge can lead to all kinds of problems, including potential litigation.
For example, if you have a child with behavioral issues, you may not want to name them as a fiduciary. Clients fall into the same trap time and time again; “My son is the oldest, so we want to name him as the primary fiduciary.” Does this way of thinking make sense? Sure. But could it lead to potential consequences? Absolutely. Instead of following conventions, consider who is best for the job.
Sometimes, we just don’t have someone we feel comfortable trusting to step into important roles like handling our finances while alive or handling our assets upon death. Instead of choosing someone just for the sake of it or naming a family member who may not be up for the task, take a step back and look at your professional connections. You might find a trusted professional, like an accountant or financial advisor, who could be a good fit. Identifying someone with experience and integrity can give you peace of mind without the pressure of choosing someone you may not have confidence in.
Guarding Against Vulnerability
As we get older, we may find ourselves more isolated – whether it’s due to the loss of a spouse, kids moving out of town, or simply not being able to get out and about as much as before. Unfortunately, isolated individuals become targets for opportunistic bad actors, such as a caregiver who manipulates a vulnerable mind to sneak their way into the Will, or a well-meaning neighbor who offers to help manage finances but ends up taking a little extra for themselves.
While we can’t always prevent others from doing wrong, there are simple steps to protect ourselves. The best defense is having a strong support system. Regularly check in with family, staying connected, and involving trusted professionals – whether it’s an accountant, financial advisor, or attorney – to act as a safeguard and help to protect you.
Communication Is Key
Last but definitely not least, talking with your family members as you plan for the future can go a long way in preventing disputes later on. When appropriate, make sure everyone knows what’s going on, why you’re making certain decisions, and, most importantly, that you’ve been transparent about how you’ve distributed assets. Hiding gifts or bequests to one child and not others only leads to confusion and resentment later on.
Being open with your loved ones, and making sure they understand and respect your wishes, can save a lot of heartache and drama once you’re gone.
Bottom Line
If you want to make sure your estate doesn’t turn into a legal headache during incapacity or after your death, the best thing you can do is plan ahead. Work with an experienced estate planning attorney, address potential issues now, choose trustworthy fiduciaries, and keep communication lines open with your family. By taking these steps, you can help ensure that your wishes are honored, and that your loved ones aren’t left fighting it out in court after you’re gone.
Contact Us
For more information about Fiduciary Litigation, contact the Davis, Agnor, Rapaport & Skalny attorney with whom you typically work, or one in our Estate, Trust & Guardianship Litigation Practice Group.