Disputes involving conservatorship and guardianship fall under the purview of probate litigation, while trust and will debates also fall under this category. The best approach to not mitigating the risk of probate litigation is to plan. Your plans may very well include comprehensive estate plans as well as measures to resolve incapacity issues and documentary evidence that supports gifts.
The Creation of Wills and Trusts
Creating a will before a person passes away allows the creator the chance to both control and communicate their wishes for how their assets should be handled. The creator of a will is also able to nominate either their personal representative or the person charged with administering their estate. By creating a will, your estate plan will not be subject to the control of New York’s intestacy law. Individuals who create wills are instead permitted to have the terms of their will dictate the distribution of their estates and resolve their affairs. A nominated personal representative has the capacity to act in such a position. Without this appointment, surviving loved ones are often left to fight over how an estate is administered. Without the will’s creator appointing such a person, loved ones often fight over who is suited for the job. Additionally, the terms of a will must be clear and inarguable to anyone who reads them to reduce the risk of future litigation.
Health Care Agents
When it comes to fiduciaries, parents may appoint a healthcare agent or durable power of attorney to make decisions addressing incapacity or a healthcare crisis. Healthcare agents can be established through the creation of a healthcare proxy. A parent will often reassurance in the concept that health care decision-making abilities do not vest in their agent until that parent is classified as either incapacitated or incapable to make decisions.
A durable power, however, typically involves retaining decision-making powers over finances the moment that the document is signed by its creator.
Protective Measures
As people age, conversations should occur addressing the protection they would like in place to deal with potential incapacity. The debate involving conservatorship and guardianship can be difficult, though. Many people are fearful of giving up financial and healthcare decision-making ability to their loved ones, but making selections about how to pass on these powers is often critical to avoid litigation between loved ones later on. Children are unfortunately often left with the undesirable task of deciding what is best to serve decision-making needs.
The Transfer of Gift Making Powers
Another tool to reduce the risk of estate planning disputes is to document both gifts received and made. Simply expressing an intent does not mean that an asset has been gifted to a person and that the recipient now owns the assets. If a family member wants to make sure that a gift is intended to be received by someone, this intent must be expressed in writing.