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How Trusts and Wills Can Change After Death: What You Need to Know

Board Certified Family Law Attorney

The loss of a family member is a stressful time, and that stress is compounded when it is time to look at the loved one’s trust or will. Tensions can run high even with the best estate planning. But what happens when a family member passes away and the rest of the relatives share differing views of how to divide and distribute the deceased’s assets and property? Trusts and wills may have complicated components in an attempt to deal with situations such as second marriages, disinherited family members, or favored relatives that can cause a lot of turmoil. Probate disputes are not uncommon. And they can become emotionally charged very quickly when families are in disagreement of the wishes of the deceased.

Meet Sandra and Mark

Here’s a situation to illustrate how various family members might feel during a probate dispute. Sandra has three grown children. After her first husband had passed, she sold the family house of 30 years in Boca Raton. She moved four hours away to a retirement community in Jacksonville to live closer to her sister. Sandra met Mark there, and they were together for several years before marrying last spring. After the wedding, she sold the condo she had purchased and used profit from that sale to buy a larger condo in the same complex with her new husband.
Sandra and Mark cared for each other very much, and Sandra had wanted to update her will to reflect that. Most of her of assets were from the sale of the family house when her first husband died. At the time, she divided the inheritance equally among her three children. Recently, she told her kids that she was planning on revising her will to include Mark for particular sentimental items and a small financial portion as well, but most of the inheritance would remain just for her three children and their families.

More Than His Fair Share?

Though older, Sandra was in very good health, and her passing came as a shock to everyone. She had not yet made the revisions to her will that she had discussed with her children over the holidays. When it came time to settle her estate, Mark felt Sandra’s estate should be distributed differently. He felt entitled to 25% of her financial assets, and that her three children should each receive 25% too. Mark felt this was fair since he did not think that Sandra’s kids called or visited enough, nor did they help Mark and Sandra move when they purchased the new condo together.

What Do the Kids Think?

All three children have different ideas of what is fair. Since Sandra made a tidy profit on her condo sale and used that profit toward the purchase of the new condo with Mark, her son Allen feels that is Mark’s portion. He thinks the will should stand as it is, particularly since they been married for just one year. Sandra’s youngest thought his mom was quite clear that Mark receives a portion of the inheritance, but that 25% is too high. Sandra’s daughter Anne is not concerned with the money but still very upset. Mark wants to keep some of Sandra’s belongings that Anne planned on passing down to her own children.

Prevention Is Preferable with Trusts and Wills

The best way to deal with a situation such as this would have been to prevent it. Periodically reviewing trusts and wills and making any revisions as quickly as possible would have gone a long way in this scenario as Sandra’s wishes would have been clearly spelled out. When not possible, the second best option with this type of probate dispute might be mediation.

Mediation Can Help with Family Disputes

Mediation might be the best way to deal with situations with a lot of ambiguity surrounding trusts and wills. It is an alternative form of dispute resolution. Mediation is not a possibility for every probate dispute. But, when it is an option it allows families to reach agreements that are preferable to an outcome determined by the courts. In mediation, everyone involved has an opportunity to share their feelings and opinions on the matter. It can provide more privacy than litigation, which can make the process less stressful for some family members.

Litigation May Be Necessary

In some scenarios, or in cases where mediation is not possible or desirable, litigation may be necessary. Unlike mediation, probate litigation involves hearings and trials in probate court. The probate judge will be the one to determine the outcome of any disputes regarding trusts and wills.
Regardless of whether you are seeking a lawyer to help a loved one create or revise a trust or will so that there will not be any family disputes in the future, or must find a lawyer to help you with probate mediation or litigation, you can contact Lewert Law by calling 561-544-6861 to help you.