New York Estate Planning & Elder Law Blog
Without you around to clarify your testamentary intent, those receiving property, and likely those intentionally omitted from your will, might battle over your estate for years. There are many potential sources of dispute, but there are steps you can take to make sure your intent is carried out without an ongoing legal battle after you pass on.
Common Sources of Dispute
- One child may have received more financial help over the years while the decedent was alive, and the will or trust does not take into account this prior assistance, which may leave the other children or beneficiaries with a sense of unfairness.
- A beneficiary takes the decedent’s general intentions expressed during their life, as promises, which may not be congruent with the provisions of the will at the time of death.
- The decedent underestimates the sentimental value that the respective beneficiaries place on certain estate property, or the decedent leaves it up to the beneficiaries to decide the division of property among themselves.
Tips for Avoiding Disputes
Level Setting Expectations. If the first time your heirs and beneficiaries learn of your intent is after your death, the more likely it is there will be some disappointment or confusion among those you choose to benefit from your estate. In order to avoid this potential dispute, be realistic about the dynamics between those you did or did not choose to include in your estate plan. You should think about how each person may feel about your choices. If there is a potential for sore feelings, you may want to approach those who may be negatively surprised and explain your intentions and decisions.
Consider an Independent Voice. In many cases a parent selects one sibling over another to manage the distribution of their estate as a personal representative, or trustee if you have a trust. Depending on the circumstances, this may pique any underlying sibling rivalry. Even if you try to resolve this problem by having siblings share responsibility, in-fighting often still occurs, which could lead to a protracted legal battle or power struggle.
Include Protections in Your Estate Plan. If other measures are not feasible, or may not be effective, another option you have is to include a no-contest clause in your will. Under New York law a properly drafted no-contest clause will provide that a beneficiary who contests the provisions in your will, that beneficiary will forfeit the gift provided by the terms of the will. This type of provision will serve as a motivation for your beneficiaries to abide by your stated intentions. If you decide to include a no-contest clause in your will, you should consult with an estate planning attorney because while these types of clauses are valid under New York law, they can be narrowly construed by a court and are subject to some exceptions.