Court Bonds

Better Than Litigation? Communication!



When it comes to making arrangements to gift assets to relations, attorneys underscore the importance of clearly communicating intentions. This is true even if relationships have been strained and communicating requires courage: bad feelings pave the path to probate litigation, which is costly in terms of time, money and fam 

Sore Feelings

Here’s wisdom for families wishing to avoid probate litigation, which, at the gut level, is most likely every family: communicate estate plan decisions early and often, especially if they are likely to come as a surprise or involve what may be perceived as “unfair.” 

As David A. Handler, a partner in the Trusts and Estates Practice Group of Kirkland & Ellis LLP, smartly observes in Kiplinger: “While litigation over estate plans is widespread and comes in many forms, I find that it’s often more about sore feelings than legal rights. There tends to be some deep-seated issues between siblings that might go back decades, long before the parents passed away.”

Indeed, strained family relations have a major impact on estate planning and research indicates that estrangement is not uncommon. For example, according to Cornell University sociologist Karl Pillemer, a survey of 1,300 Americans revealed that 27% “had cut off contact with a relative,” and of that total, “10% reported being estranged from a parent or child, 8% from a sibling and 9% from extended-family members such as cousins, aunts, uncles, grandparents, nieces or nephews.” Although decisions about “who gets the money” are personal, and sometimes what’s fair is not the same as what’s equal, having conversations, even difficult ones, is ultimately best for everyone involved, as estate planning experts stress:

There can be many shades of gray in human interaction and many ways for people to find common ground. As a parent, having open conversations with your children about your estate plan before you pass away might be the most critical step you can take to encourage family harmony afterward, or at least head off litigation. And in cases of current estrangement, taking the time to engage in that conversation could even help alleviate tension….

Intentionally having that conversation with family allows an opportunity for explanations to be made and expectations to be set…. There’s also the human element of litigation to consider. Lawsuits can elevate family squabbles to a much more damaging and hurtful level. Even if someone wins the battle, will they lose the war? Will going through that process harden them and ruin any chance of reconciliation with a sibling?

Case Example

Estate planning attorneys specifically find that “unexpected disparate treatment” of adult children is a frequent cause of painful and costly probate litigation. To underscore the importance of communicating intentions, even when difficult, David A. Handler offers this hypothetical case:

Take a couple who have two children but a strained relationship with their daughter. Their strong distaste for her husband (a feeling that is mutual) has led them to decide to leave nearly all the estate to their son and just a little money to their daughter.

People can often spend years making claims that their parents disinherited them, left everything to a sibling who persuaded the parent to treat them unequally….They likely won’t get anywhere by pursuing this course of action and will ultimately wind up wasting time and money. But consider how different things might be if the parent or parents in this hypothetical situation had just said to the child while they were alive, “This is what I’m going to do with the estate plan. I understand you may not like it, but here are my reasons why.” At the very least, they’d have some closure and probably wouldn’t still be fixated years later on the idea that their sibling had wronged them.

Probate vs Probate Litigation?

It’s important not to confuse probate litigation with probate itself.Kennedy and Rusham explain that probate litigation “refers to lawsuits filed in probate court — and the legal proceedings associated with resolving these lawsuits.” Specific examples, of probate litigation include: “contesting a will; disputing a trust; highlighting undue influence; disproving false claims from creditors; and, removing an executor for breaching their fiduciary duties.”Justia reminds us that complications during probate generally stem from “high-risk factors” such as “sibling rivalry, second marriages, and dysfunctional families.”

Routinely, probate is simply the legal, public process that settles our affairs when we die. Most states offer expedited processes depending upon the level of assets involved. When families are communicating and have had a chance to get organized, probate generally proceeds smoothly.

During probate, fiduciary bonds, referred to as probate bonds, are commonly required and serve as a form of protection for the estate and beneficiaries. When the court requires a bond, it is essential to obtain it quickly, to meet deadlines and avoid delays. That’s why Colonial Surety makes it easy and speedy to obtain all types of probate bonds via our direct, digital service. At Colonial, the steps to securing probate bonds are  simple: get a quote online, fill out the information, and enter a payment method. Print or e-file the bond from anywhere—even before leaving court.  

Obtain Probate Bonds Here

Probate and Estate Law?

Keep  things moving whenever and wherever a bond is needed. With a few clicks on The Partnership Account® for Attorneys, you’ll arm your clients with exactly the bond needed.Just select a fiduciary or court bond from the online portfolio, send it to your client for payment, then download, e-file or print the bond. Specific obligee requirements? Trust us: Colonial’s a direct bond writer, so our experts are here to ensure bonding requirements across the country are properly met.

Our fiduciary bond portfolio includes: administrator, estate, executor, guardian, personal representative, probate, surrogate, trustee, conservator and the list goes on. Court bonds are right here too, including: appeal, supersedeas, injunction, replevin, receiver and more. 

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