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Don’t Let Your Family Feud End up in Court

January 3, 2022Filed Under: Estate Planning

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Family disagreements about a parent’s end-of-life care and inheritance can get so serious they may end up in a legal filing and court case. You can take steps moving beyond the possibility this might happen and create (or amend) your estate plan seeking to diffuse these potential issues before they become legal challenges.

Every situation is unique. Everybody’s family has a different mix of personalities, degrees of wants versus needs, and problem-solving skills. The American family system is more complex than ever, with a 2021 divorce rate hovering around 50 percent, divorces, remarriages, committed long-term partner relationships, biological children, stepchildren, and physical decentralization from other family members.

Fights occur in families that are rich and poor. It turns out the dollar amount is often irrelevant. Problems stem from mismatched expectations, including but not limited to:

Sibling rivalry – Tensions between siblings tend to boil over after the passing of a parent. This situation can be especially true when inheritable assets go to step-siblings. Grief often triggers reflection, and memories of clashes and disagreements never settled tend to present themselves in real-time. The settlement of your estate can become the battleground to settle the score of a long-time feud. Avoid the situation by appointing a professional fiduciary as your trustee. If you do not prefer this option, select a family member trustee with no stake in the rivalry to mitigate its effects.

The economic disparity among beneficiaries – Socio-economic imbalances of estate heirs can destabilize the entire process. A wealthier heir may afford to hold an inheritable asset, while less economically stable heirs may want to sell for immediate financial gain. The problem seems to become compounded by the number of inheritors. You can avoid these disputes by leaving specific instructions as to the preservation or sale of real property. You may opt for “cash-out” provisions that will pay the less financially stable heirs the value of their stake in the real property and allow the more financially stable heir to retain full ownership.

Co-trustees – Even family members with great relationships and the best of intentions can clash as to the administration of your estate. All it takes is two inheritors and one grandfather clock. Executors must move quickly and decisively to administer an estate because all inheritors are waiting for their share of the payout. Avoid this problem and name only one to administer your estate.

Beneficiary dependency or mental illness – Irrational behavior that becomes part of an already sensitive situation, like your death and the settlement of your estate, will slow progress and create ill will. Any history of psychological instability or substance abuse threatens to derail an orderly process. To avoid situations with chemical dependency, create contingencies for that heir to test clean for a specific time or establish a discretionary trust where a competent trustee handles access to assets on behalf of the addicted individual. In the case of mental illness, establish a special needs trust or build specific provisions into your base trust. This protection permits the beneficiary to qualify for government assistance and still receive trust disbursements.

Undue influence – End-of-life care for a parent usually falls to one person (often a sibling) handling most of the caretaking. The uneven workload and intimate daily contact can leave the caretaker believing they are entitled to more and coerce the parent to change documents to the caretaker’s benefit. Undue influence is more often than not a product of the other offsprings’ apathy. Prevention includes paying close attention to the increasing susceptibility of an aging parent and using digital means, audio-video cameras, digital monitors that track change in blood pressure et al., to identify parent stress and prevent caregiver coercion for personal gain.

Late marriage – Love knows no bounds. Late in life, marriages happen, and you can expect resentment of your new spouse by existing heirs, particularly in a blended family with children who are primarily, or only, on the settlor’s side. Divorces, remarriage, and deaths make updating your estate planning documents a must. Upon remarrying, it is essential to place assets in your trust or modify your existing trust and Will to clarify the division of assets.

Advance benefits to one heir and not others – If one of your children needs financial assistance now or another is starting a fledgling business, yet another might require a down payment for a first home or bailout money from suffocating college debt, you may opt to provide financial help. These scenarios are common but can strain relations during probate among heirs not receiving the same benefit. Avoid this situation by noting in your trust language which heir received an advancement to their inheritance and how to deduct that previously received amount from your estate assets. If you do not, some inheritors may receive a double payout, ruffling the feathers of other heirs.

Estrangement or disinheritance – Children and other potential heirs left out of inheritance typically have nothing to lose by challenging their exclusion. This situation becomes worse in the case of blended families and their complexities, particularly if the sidelined heir pairs the challenge with a secondary claim like undue influence. You can avoid this by keeping your trust updated. A more recent trust will include a more modern disinheritance clause covering changes in this area of law. Make sure you understand the specific language in your trust regarding disinheritance.

A carefully crafted estate plan that accounts for your heirs and potential relationship problems is the first step to reducing a legal challenge stemming from a family feud. An elder law estate planning attorney knows the problems that may crop up among family members and can address these issues using the appropriate legal entities with clear and specific language. Reducing the possibility of a legal challenge to your estate brings peace of mind to you and your future heirs. If you’d like to discuss your particular situation, please don’t hesitate to reach out. Please contact our Cincinnati office by calling us at 513-771-2444 with any questions.

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Undue Influence and Estate Planning

April 12, 2021Filed Under: Elder Law

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The elderly have, unfortunately, always been more susceptible to manipulation from those who will defraud or steal from them. Targeted attacks on vulnerable older people to exert what attorneys deem “undue influence” constitutes elder abuse. It disrupts the older persons’ impulse to provide for loved ones and instead leaves assets to the manipulator. Often, family members do not find out about a change in estate plan until after their loved one has died. Most often, a manipulator will seek to keep last-minute changes of inheritance quiet.

If you believe undue influence was at play regarding the will of your deceased love one, you can take your suspicions to probate court. Proving undue influence can prompt the probate judge to rule that the will and other estate planning documents are invalid. Contesting undue influence is allowable even if there is no regular probate court proceeding to probate the will and distribute estate assets.

A probate judge will look for a claimant to prove that the will either

  • Leaves property in an unexpected manner, cutting out close family members in favor of others without an obvious explanation before their death
  • The will-maker may have been particularly trusting of, or dependent on, the influencer, sometimes referred to as a confidential relationship
  • Frailty, illness, or fear of abandonment make the will-maker susceptible to undue influence
  • The confidential relationship influencer took outright advantage of the will-maker and directly benefited by substituting a will of their choosing and not the will-makers.

Undue influence is not the same as meddling or offering unsolicited advice or opinions to an aging family member. As long as a will-maker is mentally and physically independent, they can follow or disregard opinion and advice as they choose. The situation changes when physical frailty or cognitive decline can leave a will-maker susceptible to undue influence. As an example, out of need, an older person might welcome a cousin into their home to provide them care. That older person’s children may have suspicions about the cousin’s motivation or begin to experience estrangement from their loved parent. In this event, direct conversations with the will-maker and their permission to confirm through their attorney that the will and estate documents have not changed may be necessary.

Proving undue influence in probate court will require testimony from people who knew the will-maker well, such as medical doctors and health care providers, caregivers, lawyers, and other advisers, as well as family members. These individuals then testify about what they know regarding the relationship between the deceased individual and the person being accused of exerting undue influence.

Because probate courts try to adhere to the last “voice” of the decedent, the best and least expensive way to prevent undue influence is to have an open discussion with your loved one or aging parent. Discuss their estate planning and its impact on all generations in the family well in advance of them becoming vulnerable. According to a survey by Caring.com, only 45 percent of adult children discuss what their parents’ plans are for when they need care. And only 30 percent discuss who will pay for and manage their care. Even during the COVID-19 pandemic, only a small percentage of Americans have the proper estate planning documentation. Acting now to prevent potential abuse is vastly preferable to introducing allegations of undue influence in probate court.

If your loved one is already having difficulty making rational decisions, including estate planning options, for their well-being, seek a guardianship or conservatorship through the courts. Appointing a trusted person will ensure the respect of a loved one’s wishes and prevent undue influence. If they are capable, review existing estate plans and share feelings openly. If no plan exists, encourage your parents to contact an elder law attorney and discuss the need for a will, trust, or both. Understanding and helping loved ones with aging preparations should be a family priority, and open discussion can prevent undue influence.

If you believe a loved one may have been the victim of undue influence (or is currently being influenced) please give us a call. We would be happy to discuss your situation confidentially. Please don’t hesitate to contact us at 513-771-2444.

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Olivia K. Smith, Attorney at Law
Cornetet, Meyer, Rush & Stapleton Co., L.P.A.
123 Boggs Lane,
Cincinnati, Ohio 45246
Tel: (513) 771-2444
Fax: (877) 483-2119
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Olivia K. Smith, Attorney at Law
Cornetet, Meyer, Rush & Stapleton
123 Boggs Lane
Cincinnati, OH 45246
Phone: 513-771-2444
Fax: 877-483-2119
oksmith@cmrs-law.com

Family Law Attorney Olivia K. Smith, LLC represent clients in Cincinnati, Anderson Township, Batavia, Loveland, Mason, Milford and other communities in Hamilton County, Clermont County, Butler County and Warren County.

Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact me and welcome your calls, letters and electronic mail. Contacting me does not create an attorney-client relationship. Please do not send any confidential information to me until such time as an attorney-client relationship has been established.

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