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  • Probate conflicts and their cause and cure

    • In Blog |
    • by Susan |
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    Probate conflicts and their cause and cure

    In my experience as an Orange County Probate Lawyer, the vast majority of estates are settled without difficulty. Still about twenty percent of all estates have some type of conflict. These estate conflicts are expensive and directly impact the amount of estate assets, including cash, that pass on to the heirs.

    Just having an up-to-date will or trust can rather easily prevent almost all of the most common conflicts among heirs and potential heirs.

    The most common conflicts arise in mixed family situations. An elderly man or woman, with grown children, begins a new relationship after a spouse of many years dies or after a divorce. The children do not always accept the new partner with open arms. An added complication occurs when both new partners have children.

    Absent a clearly defined will or trust, the children and the surviving spouse will seldom agree on a distribution of the estate. This is especially true in California if the parties were married, where, absent a will, all of the deceased’s community property and up to 2/3rds of his or her separate property goes to the surviving spouse. If the children fail to inherit, then they are upset. If the surviving partner fails to inherit, then he or she is upset.

    The above situation is made even more difficult, when there is a significant age difference between the partners, where an elderly man or woman suddenly takes up with a much younger partner. In this case, even having a will or trust sometimes is only part of the solution. The children may challenge the will or trust alleging that the older partner was unjustly influenced to leave all of the estate to his or her partner.

    Another variation on this theme is where the couple never marries and never registers as domestic partners, leaving the more recent partner entirely without support. Despite what the deceased intended, without a will or trust, general California law will apply to the estate and if the parties are not married, and never registered as domestic partners, all of the deceased’s property will go to his or her statutory heirs and not to a surviving partner.

    Although more predominant among the elderly, these problems can arise in any situation where there is an untimely death. Lack of planning will almost always insure some type of conflict. If you find yourself in a situation where your heirs may have a potential conflict, it is absolutely important to have a clearly drawn will or trust that conforms strictly to legal requirements.