Fighting over an Estate

Question: My Mother recently passed away. She did not have a Will. My siblings are fighting over everything. We had to each get our own attorneys. They are trying to remove the personal representative. It is such a mess and not what our Mother would want. What should I do so that my children do not run into the same problems?

Answer: I’m sorry to hear that. I am seeing this more and more nowadays. You’re right; the last thing the parents want is their kids fighting. The first thing I think of when this happens is that it’s not even the children’s money. They didn’t earn it. However, it seems like a lot of people seem to think they are entitled to everything now. What can you do? I will tell you: The first thing you can do is to have a Will or a Trust drawn up by an estate planning attorney. The advantage to the Trust is that it will not have to go probate court and you can control the distribution of your assets after you die. That being said, whichever you choose, Will or Trust, make sure it is very specific and has a lot of detail. The more specific it is and the more detail you have in it, the less chance that there will be problems when you pass away. People fight over money for sure, but they also fight over things of sentimental value. You need to address those things in your Will or Trust.

For instance, if you do not have a Will or Trust when you die, then the assets go to the legal heirs. That is the situation you are in right now. There is no direction for who is getting what. The law just says divide the estate this many ways. But the law does not say who get this and who gets that. The personal representative then has multiple people all wanting the same item or multiple people not agreeing what to do with an item. For instance: Four children inherit the house and three want to sell and one does not; now what? No one can sell the house unless they all agree. You are probably thinking to have the one buy out the other three, right? But what if the one does not have any money and cannot get a loan due to his bad credit? Now what? You
end up fighting court, that’s what.

A good estate planning attorney can anticipate the “what-ifs” (i.e., what if this happens; what if that happens) to reduce or eliminate problems from occurring in the first place. I had a client take photos of every item in her house with a polaroid camera (remember those?) and write on each photo who gets that item. She had 84 photos that we attached to her Trust. Seems like a lot but guess what, there was no fighting over those items! It was crystal clear who got what.

Michael B. Walling is an Elder Law attorney with an advance Master of Laws degree. He manages The Elder Law Center and the law firm of Michael B. Walling, PLC. Mr. Walling is also a part-time Professor at Western Michigan University. Please email any questions you would like addressed to: info@wallingplc.com. This column is intended for general information purposes only and should not be considered as legal advice to any particular person.