You 're sitting in Department 214, the Probate Department of Sacramento County Superior Court, waiting for your client's matter to be called. The couple to your right is whispering that their stepsister is only in Court for her stepfather's money. The middle-aged man to your left is busy writing notes to his lawyer about his half-sister's efforts to freeze him out of his mother's estate. Attorneys at the counsel tables are arguing over whether the decedent's stepson was a valid beneficiary in a trust. The matter heard before the current one involved an elder with dementia giving away all of his assets to his daughters prior to his death.
You wonder, with all of these stories in Court, whether any families actually have estate plans that work without bickering and challenge?
As an estate litigator and probate attorney, I've met many clients who are shocked by the seeming necessity of estate litigation. I wish that their now deceased relative had gotten or maybe taken better advice.
I see some of the same mistakes and estate battles again and again. Categorizing some of these repetitive issues can help to identify problems early on (and maybe fix them). Here are some observations with regard to estates with heirs who include siblings, stepsiblings, half siblings and/or stepparents. This is not intended to stereotype or imply that all families with stepparents and stepchildren are destined for probate disputes. Or for that matter, that all families without stepchildren or stepparents can expect trust and estate administration to be simple, straightforward and guided by familial cooperation and understanding.
Unfortunately the chances for a family feud in estate matters increase with a blended family, and blended families are on the rise across the US.
No. 1: The Serial Litigator. Many times a family will have a member or spouse of a member who is proud of filing lawsuits and either settling or winning. Perhaps he's sued various small businesses in town over minor issues. He even brags how he sued the city and won after tripping over an uneven sidewalk. Hitting others with meaningless lawsuits is a game he enjoys, and this family member is not above (or below) taking stepbrothers, stepsisters, or even his own siblings and parents to court for another miserable round of estate litigation. A Serial Litigator can be a real threat to an estate - particularly one who is indifferent to the potential consequences of most of the estate assets being consumed by attorneys' fees. The Serial Litigator's indifference may have little consequence to him but devastating financial consequences to his relatives.
No. 2: Stepmother vs. Stepchildren. First off, we're not implying any "evil stepmother" stereotype so common in fairytales to probate litigation. Rather, it's indicative of frequent conflicts in estate matters between stepmothers and stepchildren. We've represented both sides, and we've seen how tensions in blended families can carry over into disputes over an inheritance, beneficiary rights to a trust, estate property, etc. At times there are even accusations of fraud and undue influence - claims to be determined through discovery in court.
No. 3: The Amateur Google Legal Expert. We know how beneficial the internet can be to solving all manner of problems, from simple home repair issues to basic language translation. Yet there are real limits to what the internet can provide in the way of professional advice. In the same way we can overreact by diagnosing ourselves via WebMD, it's not the best idea to craft an entire legal strategy from information gleaned from Google search results. In an estate dispute within a blended family, the Amateur Google Legal Expert will claim to other family members to have found the ultimate answer to their troubles,to their troubles, and any lawyer who doesn't go along with the plan is a fool. While there are foolish lawyers out there, we're confident that experience, training and credibility in probate and trust litigation are worth their weight in gold. We don't readily embrace a legal strategy fully worked out by a nonprofessional armed with a mouse and three hours of Google time.
No. 4: The 360° Accuser. In blended family estate disputes, this character appears on the scene with regularity, pointing a finger of blame at everyone but themselves. Maybe it's a stepbrother or stepsister who seems to find everything wrong with every other member of the family, levelling all sorts of accusations, from estate theft to undue influence and even murder. Now all those nefarious acts do occasionally take place in estate cases, but somehow the 360° Accuser manages to fit the most of the family into an outrageous scheme. The 360° Accuser, meanwhile, is always totally innocent of any wrongdoing and would never be hiding something behind all their wild claims.
No. 5: The Forgetter. This may be a stepparent or step-sibling who conveniently "forgets" the details of important trust and estate documents, or even where they were placed. The Forgetter might even hide the will, hoping that it will be flushed down the memory hole. Oftentimes this will coincide with the Forgetter taking family heirlooms, jewelry, cash and other estate property, contrary to the terms of the will or trust. If they're summoned for a deposition in trust or probate litigation, they'll likely suffer "memory loss" on important points in the case. All that the Forgetter has concealed, however, will ultimately be revealed in the discovery process of estate litigation.
No. 6: The Substance Abuser. The Substance Abuser is a common character in estate fights involving blended families. Many times a family will have a "black sheep," and sometimes that child - or stepchild - will have a problem with substance abuse. Whether the issue is with alcohol, prescription drugs (a nationwide challenge) or illegal narcotics, addiction is a debilitating condition that can generate further bad-faith behavior by The Substance Abuser, including conversion of estate funds and assets to fuel their drug habit. Entire family fortunes that took years to build can be flushed down the drain by the Substance Abuser, so make sure to set up preventive measures in your estate plan sooner rather than later.
Do-it-yourself estate law via Google can be costly and disastrous - find the right attorney who protects clients and has credibility and experience.
No. 7: The Talker. Our job is to help our clients and protect their interests. That means that we need the best possible accounting of all estate assets, with documentation a priority. With a blended family situation, however, things can get lost in the shuffle or even "forgotten" by bad actors looking to enrich themselves at others' expense (see the Forgetter above). That's where the Talker comes in. A good probate litigation attorney requires a clear view of all the funds and property of a trust or estate, but the Talker doesn't provide much help. The Talker will tell stories of hidden riches (big talk) or gossip about their family members or neighbors (small talk), yet when it comes to concrete estate matters, they have little of substance to offer that would protect their interests.
No. 8: The Screamer. The Screamer is easy to recognize in an estate fight between stepchildren/half children and stepparents - they raise the volume in the room all the way to 11, in the immortal words of Spinal Tap rocker Nigel Tufnel. While some people can understandably be frustrated by the outrageous behavior of an estate wrongdoer or the circumstances of the litigation process, the Screamer takes every opportunity to charge the atmosphere with unnecessary emotional tension and start a fight where there wasn't one to begin with. The Screamer is mostly about making noise - and without substantive facts, all the noise in the world won't prove their status as a rightful trust beneficiary or heir to an estate.
That ends my observations - however tongue in cheek - of some common characteristics and characters in estate, probate and trust litigation. Just remember, your good sense can make a world of difference in solving an estate dispute. With a good, experienced probate litigator on your side, you're already several steps ahead.