AVOIDING FAMILY RIFTS WITH A CAREFULLY DRAFTED ESTATE PLAN

AVOIDING FAMILY RIFTS WITH A CAREFULLY DRAFTED ESTATE PLAN

      It is a scene all too often included in television and movies: in the years preceding the death of an elderly person, a relative or friend in close physical proximity exercises manipulation – from undue flattery and adulation to misrepresentation and fraud – with the goal of obtaining or claiming some stake, if not all, of the vulnerable person’s sizable estate, oftentimes to the total and usually stunned exclusion of other family members who also had a close (if not closer) relationship with the decedent but who were not within the same physically proximity.

      While family disputes over the estate of a loved one are unfortunately not uncommon in real life, such disputes can be significantly minimized with careful estate planning. In litigated cases, the Court will look to the documents signed by the decedent and will seek to honor his or her wishes provided the decedent was of ‘sound mind’, meaning that he or she understood the nature and extent of his or her property to be disposed of upon death, knew his or her relation to those who would naturally claim a benefit under his or her Will, and had a general understanding of the practical consequences of executing his or her Will and/or Trust, provided there was no undue influence, duress or fraud. In cases where undue influence in claimed, Florida law currently imposes a ‘presumption statute’ (Florida Statute 733.107(2)) when the beneficiary of a Will shares a confidential relationship with the testator or testatrix (the person signing the Will) and where the former was active in procuring the Will (as determined by a series of factors). The practical consequence is that when such a presumption of undue influence is found, the burden shifts and the Court will then look to the alleged wrongdoer to prove that there was no undue influence.

      Prior to disinheriting family members and/or modifying your estate plan, you may wish to consider whether your new estate plan is a conscious well thought-out decision or the product of undue influence? Even though Florida law allows one to disinherit close family members (except for certain laws that exist for the protection of one’s spouse), prior to excluding any child or other family member from your estate plan, or modifying an estate plan which has reflected your historical position or philosophy of giving, you may wish to carefully consider the following factors: your familial (blood) relationship to each family member, the emotional relationship you have historically shared with each, the emotional and financial consequences of your decision on each person, the emotional consequences of your decision on their future relationships with each other, the financial needs of each person and his/her families, the existence of any special needs, the need for any financial protections that may be necessary for the benefit of any family member, and whether you are or have recently been dependent upon any family member in any number of ways. Therefore, while reflecting upon your wishes for the distribution of your assets, and communicating this information to your estate planning attorney, it may be important to consider these in order to ensure that your instructions are the product of your careful consideration.

      In reading this, there is a good chance that you are a baby boomer, or the parent of a baby boomer. As parents of baby boomers pass away, an estimated $30 trillion in wealth will be passed on in the upcoming years. With an estimated 70% of family members losing out on part of their inheritance due to estate battles, it is important to have a carefully considered and drafted estate plan to ensure your assets are distributed in accordance with your wishes. This can go a long way in minimizing or eliminating any rifts among your loved ones. At the end of your life, you want to be sure that your loves ones will be cared for, that your assets will be distributed to those individuals (and/or organizations) with whom you have enjoyed special relationships, and that among your devises, you will also leave a legacy of peace among your family members. To minimize the risk of family rifts and/or tedious estate battles, contact the Law Office of Isabel Betancourt to discuss the creation of your specially tailored estate plan.

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