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Protecting your estate from litigation

While most probates pass without problems, you may have concerns that your estate may not be so fortunate. Perhaps your assets are complicated or your family situation is already contentious. Maybe some of the choices you have made in your estate plan are necessary but certain to cause conflict among your heirs.

The last thing you want is for your loved ones to struggle through a painful litigation that may do little to improve their relationships or their memories of you. In some cases, estate litigation is important to protect the rights of an estate's beneficiaries, but minimizing the risk that your family will need to go to court is possible through good preparation.

The benefits of a will

If you have not written a will, this is a good first step. Those who pass away without a will, or intestate, often leave behind confusion and guarantee a prolonged and stressful probate. Intestate succession places your assets at the mercy of New York's estate laws, which means their distribution may not fulfill your desires or the expectations of your heirs.

Even people with minimal assets can spare their heirs grief at probate by drafting and executing a detailed will. In some cases, however, even a will may not be sufficient for ensuring that your wishes are carried out. For example, if your estate includes overseas properties or a business, exploring your options with a legal advocate may prove beneficial.

Your personal representative

Your choice of estate executor may give rise to complications. Your executor may be responsible for gathering, appraising and distributing your assets, as well as paying your bills and determining how to run your business. One person with so much power may create discontent among your heirs, not to mention giving rise to issues of trust, especially if you do not reveal the name of the executor until after you have passed away.

Communicating your choice to your heirs is one way to avoid an unpleasant surprise, which often carries over into resentment and contention. You may find that your children are willing to work together to manage the estate, with each taking roles that suit their strengths.

How your heirs factor in

The most common way to stir up disputes among your heirs is to leave unequal inheritances. While you may have very valid reasons for reducing one child's portion – or even disinheriting that person altogether – this is another element that you should not spring on your grieving family after your death.

Nevertheless, if you choose to leave the dispute for probate, you may wish to include a letter of instruction explaining the reason for your disproportionate allocations. You may also consider adding a no-contest clause to your will, which revokes the inheritance of anyone who contests its contents. Your attorney may have other suggestions for minimizing the chances that your estate will end up in costly litigation.

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