Trial Lesson: Communication is key.
I was recently at a probate trial and wanted to report on a lesson which should come as a surprise to no one but is just as true in probate as it is in life: communication is key. One of the most common reasons for probate litigation is that what was placed into plan or perceived to be placed into a plan was not put into practice. Longtime practitioners will tell you that to minimize the risk of probate, clear communication is key both for a testator (the person creating the will or legacy) and a beneficiary (the person expecting the inheritance).
As uncomfortable as it may be from a testator’s perspective, communication with beneficiaries about the testator’s plans and intentions can help minimize the risk of probate litigation. Indeed, clear communications decrease the risk of people arguing about what their family members would have wanted, infighting amongst beneficiaries, and leading to a lengthy litigation and subsequent trial. Of course, these crucial conversations sometimes come at the expense of conflict between the testators and beneficiaries themselves. Therefore, it is up to the testator to evaluate their goals and weigh the risk of potential probate litigation and infighting amongst beneficiaries against the risk of a testator’s strained relations with potential beneficiaries.
Communication is also key from anticipated beneficiaries’ perspective. If a beneficiary feels they have strained relations with persons who are in a position of control and could affect an anticipated inheritance (such as an executor of a will, trustee, or attorney-in-fact) communication may prevent or dissuade them from interfering with the inheritance. In a perfect world, communication would mend the strained relationship altogether. In a not-so-perfect world, communications—specially written communications—may provide evidence in support of probate claims like tortious interference with an inheritance. Although these claims are generally difficult to prove, like with all claims, they are easier to prove with evidence than without.
In conclusion, whether you're a testator or a beneficiary, communication is the cornerstone of decreasing the risk of probate litigation.
-Silvia A. Brett, Esq.
Silvia Brett is an attorney located in St. Petersburg, FL, who handles Estate Planning and Probate. Click here for more information.
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