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Learning About Probate Part 2

Legal Tools That Can Be Utilized to Avoid the Probate Process

by Don Drake, Connelly Law Offices, Ltd.

RJ Connelly III
Attorney RJ Connelly III

"Probate litigation can include such issues as guardianship and conservatorship disputes, will and trust contests, arguments over family real estate, and identifying the true intentions of gifts," said professional fiduciary and certified elder law Attorney RJ Connelly III. "The most successful approach to mitigating or avoiding probate litigation risk is carefully planning for the future."


"Comprehensive estate plans that are routinely updated, careful consideration and documentation of gifts, and protective measures in the event of incapacity contribute to a challenge-free transfer of your estate assets to your heirs."


Avoiding Probate with Trusts

"A terrific way to avoid probate litigation is with a revocable living trust that permits you to title assets into the trust and manage it until your death," stated Attorney RJ Connelly III. "Years of managing your assets within this type of trust proves that you handle your finances and property precisely as you intended if a contest is brought before a probate judge. Competent management reduces the risk of litigation as it demonstrates your mental capacity and fiscal management capability."


Common Reasons for Contesting a Will in Probate

"Some of the most common reasons I see for probate litigation are gift-giving and real estate transfers to children during an individual's lifetime," said Attorney RJ Connelly III. "These transfers open the door for litigation, especially if these transfers have complex provisions and varying percentages. The consequences of an unequal transfer of property or gifts often lead to children feeling the circumstances are unfair. Adult children may not interpret the underlying future intent. For example, dividing ownership of the family cabin gives one child eighty percent and the other twenty percent."


"The same holds for gifts like jewelry, baseball cards, or art collections. A parent may promise a child an inheritance of a gift, but such a promise may invite future probate litigation without detailing it in a document with your signature. Gift promises and real estate transfers often lead to disputes between siblings and probate litigation."

Probate Professionals

Making Sure Your Wishes Are Followed

Incapacity can be a challenging topic for a family to work through. Anyone at any age can become incapacitated by a sudden illness or accident. The thought of relinquishing financial and health care decisions to adult children or other family members can be unsettling.


"Implementing financial and medical powers of attorney can help avoid future litigation between family members," stated Attorney RJ Connelly III. "The best way to do this is to nominate a guardian and financial and medical conservators while the individual has sound decision-making capacity and autonomy. They will be designated in the will and durable powers of attorney documents."


"It's important to understand that individuals can still make their own healthcare decisions even with a healthcare proxy or medical power of attorney. Those nominated can only decide on another's behalf once a doctor deems them physically or mentally incapacitated. In contrast, a durable financial power of attorney will retain decision-making powers over finances upon signing the document. An estate planning attorney helps you identify the criteria for your specific needs when making decisions for this crucial role. It's imperative to select both representatives well before unforeseen events that require their help."


Planning Ahead

Establish your will and trusts early on as they are vehicles to control and communicate your personal and real property distribution to heirs. Your Will protects your family from intestate statutes or laws that govern dying without a will. You will nominate a personal representative to oversee your estate, the payment of outstanding debts, final taxes, guardianship, and the dispersal of remaining assets.


Most states will not consider stepchildren as part of an inheritable estate without a will explicitly including them. Most families typically fight over who is best suited to the job without a will naming a representative. This situation can lead to expensive and time-consuming litigation.


To avoid probate litigation, your will and naming a financial and medical durable power of attorney representatives are crucial estate planning elements. To guard against litigation more fully, a revocable trust avoids court oversight altogether except in the case of a challenge. However, if you have been competently overseeing the revocable trust, this presents a formidable challenge to contest.


"Contact Connelly Law to learn how a will, durable medical and financial powers of attorney, and a trust complement each other to provide a strong defense against probate contests," Attorney RJ Connelly III said. "Our probate and estate planning attorney and legal and fiduciary staff can make provisions for all documents to be unambiguous, increasing the probability of avoiding potential future litigation."

Probate Professionals

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