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Practice area of high conflict: The oft-overlooked drama of probate

By: Bridgetower Media Newswires//July 18, 2022//

Practice area of high conflict: The oft-overlooked drama of probate

By: Bridgetower Media Newswires//July 18, 2022//

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Cooper Warner is an associate attorney at Block Legal Services. A Marquette Law School graduate, Warner specializes in estate planning, probate, guardianship and mediation matters.

It goes back to age 13. That’s when my current client, we will call her Andrea, first made it known she wanted her dad’s vintage slot machine in the corner of their unfinished basement. At the time, her older sister Rachel couldn’t have cared less.

There were more pressing matters than who gets dad’s junk when he dies. Plus, a world without dad is a world she couldn’t fathom. Fast forward forty-five years and that slot machine is all Rachel cares about. Or so my client tells me, tears filling her eyes. Andrea’s beloved father has passed away leaving behind two grieving, and fighting, daughters, and a mess of assets.

A familiar, yet ever complicated, case lies ahead for the probate practitioner. One must untangle assets, probate and non-probate, sentimental and valuable, and discern the emotional triggers connected to each. Probate and estate planning, much like family law, involves drama, emotion, and high-conflict situations; yet, it is often treated as a practice area solely for paper-pushers or humdrum transactional types. When I first began practicing in this area, I was surprised to find nearly every day full of some new scandal or intrigue on top of the complicated transactional abilities required for the practice.

Leaving law school, I was under the flawed impression that only family-law lawyers needed those so called ‘soft skills’ to deal with tears, gossip, and anguish. I should have remembered Tolstoy’s words,

“Happy families are all alike; every unhappy family is unhappy in its own way.”

That is why, like an apple a day or some other cliché, good estate planning is important. Half of my practice is spent doing just that. I meet with clients, talk about their assets, and formulate a holistic plan to best fit their needs and wishes. Besides providing security to my clients who can check this big task of their list, it also gives them peace of mind to know their loved ones won’t have to deal with a mess of assets when they pass away. Estate planning isn’t foolproof; nothing in this world is. If there are arguments amongst heirs or beneficiaries, the best we can do is minimize conflict and provide clarity in what might otherwise be an ambiguous situation.

For example, in Andrea and Rachel’s situation, their father could have used a document called a Memorandum of Tangible Personal Property to list specific assets to pass along to others. This document accompanies a Will or Revocable Trust and can be changed throughout life without witnesses or a notary required at signing. This way, valuable items—both sentimental or otherwise—can be left to specific beneficiaries and there is no question as to what Dad may have wanted.

Much of the emotional strife that stems from highly contested probate cases comes about when there are different interpretations of the wishes of the decedent. When the decedent isn’t there to clarify things, a lifetime of promises, conversations, and old grudges can come up, with the result that family members get pitted against one another. An innocuous remark made by 13-year-old Andrea is now used as ‘evidence’ she should receive her father’s slot machine. Rachel, secretly upset Andrea was her father’s favorite has decided the slot machine must be hers. One must not forget the backdrop of these disputes is the death of a loved one. A lawyer must discern the legal issues in any given case, but also the emotional factors driving the client’s wishes and be sensitive to the fact that clients are grieving.

Another way good estate planning can protect against strife is by explaining the intent of the Testator or Settlor. For example, many clients come into our office in disbelief their parent would not leave them any inheritance and leave it instead to a sibling, friend, other family member, or charity. An often-repeated phrase is, “I know they wouldn’t have wanted that.” Any suspicion of malintent in the drafting or execution of documents can create tremendous tension in family relationships.

Allegations of undue influence are lobbed around with great frequency. The chances of this situation becoming an area of conflict increase exponentially when one sibling was the primary caregiver and or Power of Attorney Agent for the now deceased parent, and the other siblings were less involved.

Thoughtful estate planning can avoid conflict in a situation where an heir receives less than another heir or is written out entirely. In a situation where a parent wants to write-out a child, I suggest they attach a Letter of Intent to the Will or Revocable Trust. This letter explains why they decided not to leave anything to the heir. The letter is not to air grievances or make digs. It is a space to contextualize their wishes and to clear up any ambiguity. This document helps mitigate any potential Will challenges down the line.

It goes without saying family relations can be difficult. Such difficulties are often heightened after a death. A wise estate-planning and probate attorney knows this reality and is ready to attack both legal and emotional issues as they come. For those curious readers, I’ll let you know Andrea got the slot machine.

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