As most parents of young children will tell you, there are few things more annoying than when their kids bicker, squabble, and argue. Even though sibling rivalries and arguments may just be part of the program, and are almost always harmless, disputes among adult children after the death of a parent can be much more costly, both emotionally and financially.
Although there may not be much that you can do to keep young children from squabbling, you do have the opportunity to try to keep them from fighting over your estate plan after you’re gone. While no estate plan can guarantee that siblings won't argue, disagree, and possibly litigate about who gets what or what should happen to certain assets you can take steps during your lifetime to reduce the likelihood that your death will create tensions and conflict between your children.
Here are six things you can do that can help prevent your kids from fighting over your assets after you're gone:
1. Develop a Comprehensive Plan With Professional Advice Tailored to Your Situation
One of the keys to avoiding disputes about your assets after your death is to have a clear and comprehensive plan. Start by spending time, alone or with your spouse, listing all of your assets. You will want to include all the usual assets, such as real estate, cars, bank accounts, investment accounts, jewelry, furs, art, and collectibles like stamps, coins, or sports memorabilia. When doing this, don’t forget to include assets like sports or theatre season tickets, cryptocurrency, intellectual property (patents, copyrights, or trademarks), or debts that are owed to you. Of course, your plan should also include any interests in any businesses or other companies that you own. (There are entirely separate considerations that come with transferring those interests that are beyond the scope of this post, but will be addressed in an upcoming post.) Consider, and make notes about, what you want to do with each of the assets.
Next, carefully select the right professionals to document your plan. You should certainly consult with a lawyer, and probably an accountant as well. Resist, at all costs, the temptation to use services like RocketLawyer, Legal Zoom, or similar form-based services – and don’t use AI! Personalized professional advice tailored to your specific situation is critical to ensuring your wishes are respected after your death--and with a minimum of conflict. In selecting a lawyer and an accountant, you should not assume that professionals you may have used in the past are suitable. Not all lawyers are competent to develop an estate plan or draft a will. Likewise, not all accountants are qualified to advise on the tax implications of your estate plan.
Seek recommendations from people you trust, and interview multiple lawyers and accountants. Don’t be afraid to ask pointed questions about their experience with people in your situation, and hire whomever you’re most comfortable with. Personalized advice from expert professionals, though certainly more costly than a form-based solution, need not be prohibitively expensive. If the professionals you choose are simply beyond your budget, most will happily refer you to less costly colleagues. A great deal of expensive and time-consuming litigation might have been avoided by careful, professional planning and drafting.
2. Meet With Your Professionals Alone.
Some people want to involve their children in their estate planning process, which is fine – to a point. When you meet with your estate planning lawyer and/or your accountant to discuss your goals and wishes, you should do so by yourself or with your spouse, not with your children (or anyone else) in tow. You want to be able to discuss your intentions openly and honestly — and want your professionals to share their advice – without outside influence.
In addition, meeting a lawyer or an accountant alone or with your spouse will preserve your attorney-client (or accountant-client) privilege, so that your lawyer or accountant can never be compelled to disclose the content of your communications in any future litigation. Including others in the meeting can destroy the privilege, meaning it could be disclosed in a future court battle.
3. Once Your Plan is Documented, Communicate Your Intentions Openly
Meeting with your lawyer without your children does not mean they should be kept in the dark about your plans. Unpleasant surprises are the most common triggers of will contests and other estate litigation. Heirs who are unhappy with their inheritance often initiate litigation because they cannot believe that the deceased could possibly have been competent if they executed a will that treated the heir so poorly (and treated their sibling so much better). Avoid this by communicating your intentions. As the old adage suggests, “deliver good news fast and bad news faster.” Prompt, open communication is especially important with respect to your estate plan, because it is critical to avoid even the suggestion that you were not competent when you developed your plan. Delaying the conversation risks some intervening event that causes your heirs to later question your mental capacity, because the lack of capacity is one of the strongest grounds to overturn a will.
These can be difficult conversations, to be sure. If you simply cannot have such a conversation with the affected heir, make sure to explain your rationale to other people who don’t receive anything under your estate plan. You may wish to put your thoughts in a letter, drafted on the day you sign your will, with instructions that the letter should be delivered upon your death. This transparency can prevent the confusion and feelings of unfairness that so often lead to litigation.
4. Include a "No Contest" Clause in Your Will
Disputes between heirs most frequently manifest through a will contest in which a party who feels they got the short end of the inheritance stick or believes the will is invalid seeks to set it aside.
You can significantly reduce the likelihood of this happening by taking away the main incentive for contesting a will. A "no contest" clause (also called an "in terrorem" clause) discourages heirs from challenging your will by stating that any heir who does so will forfeit their inheritance. Although not enforceable in all states, Maryland law permits such clauses unless the person challenging the will had “probable cause” for bringing the challenge.
Under Maryland law, “probable cause,” as used in the statute means facts that would lead a reasonable person to believe that there is a substantial likelihood that their challenge to the will would be successful.
So, an “in terrorem” clause puts will challengers at risk of losing whatever bequest they receive under a will if they bring a challenge that is not substantially likely to succeed.
5. Appoint a Neutral Personal Representative or Trustee
Choosing the right personal representative (called an executor elsewhere) or trustee to manage your estate and distribute your assets is crucial. If you appoint one of your heirs, it can create tensions among siblings or other beneficiaries. Instead, consider appointing a neutral third party, such as a professional or institutional fiduciary, to manage the distribution of assets fairly and impartially. If you do choose one of your beneficiaries over the others to serve as your personal representative, clearly communicating your reasons for doing so will eliminate a potentially unpleasant surprise and thus reduce the likelihood of litigation.
6. Provide Specific Directions for Sentimental Items
Will contests and other fiduciary litigation are often driven not by money but by sentimental attachments to particular items. Especially after death, emotions run high and disappointed heirs frequently pursue litigation relating to sentimental items at a cost that far exceeds the monetary value of the items themselves. You should, as best you can, take a complete inventory of items like photos, family heirlooms, and other items that might remind your heirs of specific times, places, or events of importance. Your estate plan should provide clear directions for the disposition of all such items, especially if you intend to give any of them to non-family members. Your will should specifically identify each item that you want to give to a particular recipient, and should do so with enough detail that someone who has never seen the item can find it. It should of course also specifically identify the recipient.
The dynamics of every family and the contents of every estate are different. The details and contours of an estate plan designed to minimize the chance of sibling conflict will depend on the nuances of both. The six options listed above will not be appropriate for every estate plan. Used judiciously, though, with personalized expert advice, they can substantially reduce the likelihood of litigation over your estate after your death.
If you would like to discuss any of the items mentioned above or prepare or update an estate plan, please contact Brian Balenson, Dan Katz, or Michael Lentz .
This article is provided for informational purposes only and should not be considered legal, accounting, or tax advice on any matter.