Probate courts are full of family fights about money and property. These battles can go on for years and can easily wipe out substantial sums you may have worked hard to create as your legacy. Attorneys’ fees usually come out of the estate of the deceased. Who wants that?

Where the Problems Start

Some problems are created by the aging persons who do not communicate with their heirs. Rather than keeping the inheritance equal among all, they favor one or the other. They say nothing. The shock on the ones who don’t get as much turns to anger. While anyone who is clear of mind has the right to do anything they want with their money, disgruntled heirs get incensed at what they see as unequal treatment. They find lawyers who are happy to get paid for litigating for them and the fight is on.

The Cost

Filing a case in the state probate court and pursuing whatever theory comes up gets very expensive. When one heir, usually a sibling of someone who got more than they did gets going, the other who perceives an attack fights back. Another lawyer gets into the picture and soon matters escalate. They delve into the will and/or trust, allege fraud, undue influence and other theories designed to overcome the wording in the estate plan in question. Experts are hired. Attorneys must get paid. Estate assets are spent for all these costs. That’s the financial part of the picture.

The other part is the emotional toll. Family members legally pitted against each other are a destructive force on family relationships. Sometimes a party comes away with more money or property as a result of the fight but they never speak to the relatives on the other side of the case for the rest of their lives. This can damage younger generations too. That’s a high price to pay for “winning”.

The Prevention

At where we consult with aging parents and their families, we think preventive steps can help avoid some of these nasty probate court battles.

Here are some tips:

  1. If you or someone you love wants to change a long-standing estate plan from equal for all to something else, be sure the one who wants this change is not impaired for decision-making. Before changing or creating any will or trust that does not equally distribute the money and property to heirs who may expect it, see at least the elder’s treating doctor for an evaluation. Courts look at what is called “testamentary capacity.” Lawyers and sometimes courts determine that. They rely on medical doctors and psychologists to evaluate testamentary capacity, which is the ability to make a will or estate plan.
  2. Get written records showing that the elder is not cognitively impaired to to as interfere with their legal, testamentary capacity. That means doctor’s reports, capacity evaluation and testing, and other records that demonstrate the person’s state of mind. With that, it is much harder for a disgruntled person to claim later that the elder didn’t know what he or she was doing in changing the will or trust.
  3. In my state, the law suggests that if someone wants to give an unusual gift, which can mean unequal distribution among one’s offspring, an independent lawyer should assess whether the elder is being pushed to do it. They call that pushing “undue influence”. The lawyer interviews and assesses the elder, counsels them as to risks and benefits of making this gift or change and fills out a form with the independent lawyer’s conclusions. The review typically concludes that the gift proposed is not because of fraud or undue influence. That can help but does not necessarily prevent every probate fight.

The Cure

What the law does not require is a family meeting in which the elder who wants to make or change an estate plan that is not equal speaks about it in advance to those involved. We at believe that transparency about one’s intention to give or not give gifts via inheritance can do a lot to prevent those nasty and destructive probate fights. Having mediated these family fights, I can say from personal experience that sometimes things can be worked out without going to court. It’s the best shot everyone has to salvage fraught relationships or at least create rules for civil communication in families of all kinds.

Even when an elder who wants to distribute gifts among adult children unequally, a family mediation facilitated by expert mediators does not altogether eliminate anger. It does, however, allow the one who wants to make gifts an opportunity to explain why they did what they did in an estate plan. It also allows a forum for any participant to express what they want to express to the gift-giver. Since mediators know that emotion is what drives these conflicts, we see the benefit of creating a space and opportunity to air those emotions. It’s decidedly cheaper than a drawn out probate fight.

Nowhere is it written that anyone has to give an inheritance to anyone else nor that heirs must be treated equally. We all have freedom to choose for ourselves as gift-givers who gets what, if anything. But entitled adults may wrongly see an inheritance as a right. If you see any of these looming issues in your own family, consider the possibility of preventing them from escalating. Some disputes really can be resolved.


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