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An Effective Estate Plan can help avoid Probate Litigation

Posted by Daniel J. Eccher Esq. | May 08, 2019 | 0 Comments

A recent decision by the Maine Supreme Judicial Court reminded me of the importance of careful estate planning. The Estate of John W. Gilbert has been litigated in the Waldo County Probate Court for several years. The decision was related to a third appeal of issues in the case.

There are many reasons an estate can end up in litigation. I will focus on just a few of the most common reasons that estates are litigated. One should try to avoid litigation related to the administration of estates - if only to save time - but also to save money.

A common reason that would-be heirs litigate an estate is if they are left out of someone's estate plan, with or without reason. In particular, children left out of someone's will may feel a sense of entitlement to part of the estate and, therefore, either try to challenge the will or challenge the decisions of the personal representative of the estate. Another common pattern, as in the Estate of John W. Gilbert, is in a blended family, where a biological child challenges the inheritance of a stepparent. (In the Estate of John W. Gilbert, the biological son of the decedent was challenging the actions of his stepmother.) Our usual recommendation in the case of blended families is that clients leave something to biological children, and not write them out of there will entirely. (Of course, if that is what the client wants, then that is how we will draft it; we usually include some sort of statement that the natural heir was intentionally omitted.)

Another common reason for litigation is where children are treated unequally in the estate plan. When one calculates how much each child will inherit, one should consider not only probate transfers but non-probate transfers as well. For example, if one child is listed as a co-owner on a bank account, but all three children are left the probate estate in equal shares, then the one child on the bank account will benefit unequally. If the discrepancy between the children is significant, children who received less are likely to sue.

Another reason someone may challenge the way an estate is administered is if they do not receive items with significant sentimental value. If you know a particular heir has a strong desire to receive a particular item with sentimental value, you should leave clear instructions about that item for the personal representative.

Do you want your heirs to avoid litigation? Perhaps you would benefit from a conversation with one of us. Give us a call!

About the Author

Daniel J. Eccher Esq.

Daniel J. Eccher, Esq. is the Managing Shareholder at Levey, Wagley, Putman & Eccher, P.A., in Winthrop, Maine. Dan's favorite problem to solve is helping clients figure out how to afford long-term care while having something left for their family. He also enjoys helping couples establish esta...

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