How do I make sure my kids don’t fight over my estate? I get this question once in a while when I am creating an estate plan for a client. The long and short of this question is that while you can do a number of things to make things better, you can never completely erase the possibility of a fight.
It has also been my experience that most of these fights are not over the bigger monetary parts of a probate estate. By this I mean, that the heirs are more likely to fight over who gets Mom’s ring or Dad’s shotgun than the way the $300,000.00 bank account is being divided. My guess is that this is because of an emotional attachment to the items. I think in the minds’ of these heirs are thoughts similar to, “Mom wanted me to have that as an expression of her special love for me” or “I want that as a special reminder to me of the good times I had with Dad.” Unfortunately, I have seen kids that previously have gotten along famously, not speaking to each other after a division of personal property that did not go as everyone had hoped.
The best thing to do along these lines is to find out ahead of time if there are things that children have a special interest in owning. Then make a decision as to who will get those items. Make it clear to everyone involved, either through your will or by some other means what you want to have happen with your personal items. So, ask your kids what they want, and then make it clear what you have decided. This at least prevents children from harboring unkind thoughts towards a sibling who ended up with an item that another child thought was something you really wanted them to have.
There are also those families that a parent knows from the get-go are likely to fight over their estate. This can be because none of the children have ever gotten along or there may be one child that is always a source of contention. Parents, as part of their estate planning, in this instance can choose to include a “no contest” clause in their will. Such a clause says in essence, “If you try to argue in court about the way I have written my will or how I decided to give things away, then you will lose your share of anything left to you in the will.” This generally will keep a contentious child from fighting things in court and helps preserve more of the estate for the surviving heirs.
Such “no contest” clauses have been around for centuries and in Latin are called “In Terrorem” clauses, because they are supposed to scare the would-be troublemaker. Recently, while doing some legal research, I came across one of these clauses written in an old English will from a few hundred years ago; it made me laugh. This Dad clearly wanted to scare the hell out of anyone that even thought about going against his wishes. It read:
“He that bereaves my will, which by God’s permission I have now made, let him be bereaved of these earthly joys; and may the Almighty Lord – cut him off from all holy men’s communion in Doomsday; and be he delivered to Satan, the Devil and all his cursed companions to hell’s bottom, and there be tortured, with those whom God has cast off or forsaken, without intermission, and never trouble my heirs.”
In modern times, estate planning attorneys, like me, do not resort to threats extending to the after life, but these no contest clauses are a handy tool we have at out disposal to help you. In your planning you may want to let your attorney know that you believe such a clause might be needed for your family.
Stan Butterfield is a probate lawyer in Dallas, Oregon. He practices in Polk, Marion, Linn, and Yamhill counties. If you think Stan could help you with your estate planning or with a probate case, call him—(971) 600-7282 or (503) 623-7282.