Who hasn’t struggled to keep peace in the family?  On the way to a family outing the fighting starts over who gets which seat?  As Yom Tov approaches, whose parents to do we go to for the first days? And the scenarios are endless….

But after we pass on, we have the hope that the family will come together to mourn and then to move on with their lives, giving help and support to one another.  Who, if not your family, is your greatest support network?  Unfortunately, the passing on of family assets to the next generation can be the biggest test of family unity.  Consider the following story:

Shimon* and Leah* (*names have been changed), husband and wife had 3 adult children, Zvi, Eli and Suri.  They were all very close.  Leah was quite ill for several years, and Suri spent a tremendous amount of time and self-sacrifice helping her father care for her ailing mother. Leah passed away, then Shimon shortly thereafter.  Shimon left behind a secular Will that did not comply with halachah. It included a significant distribution to Suri, and a lesser but equal distribution to the 2 boys Zvi and Eli.  Zvi, the oldest son, spent several years contesting the Will in both a Beis Din and secular court, fighting for what he believed he was entitled to as the halachic heir and bechor.  None of the children are on speaking terms.  These ordinary people would never have imagined anything like this ever happening.  All this could have been easily avoided with a comprehensive halachic estate plan.

Inheriting property does not always bring out the best in family members.  There are many individuals and families who manage everything well, follow a loved one’s instructions with care and consideration, and peacefully agree on issues that may not be clearly defined.  However, there are others who do not manage these situations well at all.

When a loved one passes on, often feelings and emotions are highly charged. Mistaken beliefs and misconceptions can emerge, having the potential to last indefinitely. The passing of a family member can give rise to long-dormant relationship issues, which may resurface and revive old jealousies and resentments.  Negative thoughts and feelings could then be compounded by surprise and unmet expectations.

But whether your estate is large or small, or your children get along famously or less than ideally, there are some things you can do to minimize the likelihood of an estate dispute or contest.

Create an estate plan while you are still healthy and of sound mind.

Don’t wait for an illness to create your estate plan.  You need to be in the best position to work with an attorney to communicate your wishes clearly and effectively in order to design an estate plan that is best for you.

By creating a plan in advance, you can focus on your health issues, should they arise, without the additional burden of having to put your affairs in order.

Explain, to your family, different or unequal treatment of beneficiaries.

Chances for disputes and litigation increase when beneficiaries are surprised or hurt when receiving their inheritance because they may have anticipated more of an equal distribution among family members. 

For orthodox Jews, there are Halachic guidelines which govern how and who should receive your assets.  Lack of knowledge, understanding, and failure to properly plan in advance could be a catalyst for tremendous conflict.  For instance, according to the seder of yerushah (order of inheritance), if a man has sons, they are the sole heirs of his estate, halachically.  If there is more than one son, each son inherits an equal share, and the bechor (the firstborn son) receives a double portion.  Consider the following hypothetical by way of example.

Although many parents leave their property to their children more or less equally, there can be many good reasons for a different plan.  Perhaps a child has problems handling money or already received an “advance” on his inheritance in the form of a gift.  Or, possibly one child is more financially stable than the others.

While you may have valid reasons for treating beneficiaries differently, if you decide to do so, additional care should be exercised to protect your plan if contested.

Making your wishing known in advance with a family meeting or a separate and personal letter explaining your decisions could be very helpful in preventing family feuds.  A “no contest” clause in a Will or Trust could also serve as a deterrent to litigation.

When children understand your reasoning, they are more likely to honor and not challenge your decisions.

Discuss, with your family, the division and distribution of your personal effects.

Separating personal property such as jewelry or other collectibles is usually not as easy as dividing bank accounts into equal shares.  The distribution of tangible belongings gives rise to most of the disputes that occur.  This usually is due to emotional attachments associated with particular items.

Having open discussions with beneficiaries to make your wishes and expectations known can be extremely helpful towards maintaining family harmony.  This could also be a good opportunity to obtain new found information regarding preferences or lack thereof, for any of your personal things.   A personal property memorandum or other itemizations of specific gifts in your estate plan can be extremely useful towards preventing disputes and provides clarification for claims of verbal promises.

Use a Revocable Living Trust to avoid probate.

A Will based estate plan requires probate.  Once a Will has been probated, it becomes a public record and the world will now know who your beneficiaries are and what they received.  Also, beneficiaries and heirs that you might have disinherited must receive probate notices and are given an opportunity to contest your Will.

With a properly funded Revocable Living Trust, you can keep your estate private and out of probate court.

Choose your executor and trustee(s) succession wisely.

It is extremely important to choose an executor (the person who will manage your estate distribution) and trustee(s) (the persons responsible for your trust) you trust and can rely on.  Although you may have competent and available individuals in mind, to appoint as your fiduciaries, an incompatible combination can create and fuel conflict.  You should also consider the relationships between these fiduciaries and beneficiaries. Try to anticipate what conflicts could arise during administration of the estate.  

In some instances, naming co-trustees can minimize conflict, but in others, it may generate conflict.  If beneficiaries are likely to fight, consider naming an independent trustee, such as a trust company.

Providing trustees with an exit plan, and appropriate trustee succession, can ensure your wishes are carried out.

 Communicate if your giving is a gift, advance, or loan.

If you have given informal, financial assistance to your family members, it’s important to define how these transfers are identified and how they will be treated at death.

Transfers during one’s lifetime could be considered a gift, loan, or advance against a beneficiary’s inheritance.  Discussing these issues during the estate planning process can go a long way to avoid confusion and disputes.  Even if they don’t appreciate your plan, with early communication, they will have had some time to get used to the idea and voice their concerns.

Monitor and update your estate plan.

Since laws change and certain events transform our lives – birth, death, marriage, divorce, etc., plans should be reviewed periodically (ideally every 3 years).  It is also important to monitor your assets, beneficiary designations and fiduciaries to account for changes in circumstances.

 Many of us have seen or heard stories from family or friends who have been embroiled in estate disputes or litigation.  Often, these situations can be avoided with advanced and thoughtful planning to address issues that can lead to disputes. If, on the other hand, your estate plan takes everyone by surprise, there could be confusion, argument, and possibly litigation. 

Consider an elderly man who leaves most of his estate to a charity, or a caregiver who recently arrived on the scene. Perhaps a woman leaves a valuable piece of jewelry to a niece who wasn’t known to be particularly close to her, instead of her children.  If the children knew that the niece, who simply admired the piece of jewelry, had repeatedly performed special and significant acts of kindness for the woman, or the caregiver had performed extraordinary services, the children wouldn’t be left wondering about the fairness of the bequests.

Seek quality legal advice.

Most people recognize the importance of estate planning, but some think they could do it themselves.

Do-it-yourself plans are more susceptible to challenge and ambiguity. There are state specific statutes that govern the drafting and execution of estate planning documents.  Failure to follow these regulations can result in a court rejecting those documents, rendering them completely useless, as if there were no documents at all. 

Estate planning documents prepared by a qualified attorney can help ensure that the plan was properly prepared and not created, or unduly influenced by a beneficiary. The attorney’s expertise, file preparation and documentation, can help minimize ambiguity and legally memorialize your intentions to ensure your wishes are honored.

The most beneficial and acceptable way to avoid potentially contentious issues is to prepare a comprehensive estate plan, which complies with Halachah.  Memorializing your wishes legally and in advance, with open communication, is more likely to garner cooperation and full respect for your decisions. Proper planning is one of the best things a person can do for themselves and the people they care about the most.

The information in this article is intended solely for your information. It does not constitute legal advice, and it should not be relied on without a discussion of your specific situation with an attorney.