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Torrance Elder Law Blog

When sibling tensions become will disputes

When a parent dies, the last subject siblings generally prefer to discuss is that of a will. Yet it is not uncommon for surviving family members to become involved in disputes over the details of a will that a parent leaves behind. When such a conflict arises in California, there are many routes to solutions; however, there are an equal number of warning signs that can help surviving family avoid these stressful situations altogether. 

Everplans, a company that provides resources on wills and financial planning, shares some of these warning signs. Preexisting sibling rivalry is one red flag, as such tensions are usually deep-seated and can prolong over decades. That simmering pot can eventually tip when a parent dies and children are left to pick up the pieces of a will. Everplans mentions that one path to resolving these tensions is to work with a professional fiduciary who can help siblings reach an agreement. 

The qualities of a good estate executor

If your parents or other loved ones died without an estate plan, you may remember the frustration and confusion you went through. Perhaps the court appointed a personal representative, and that person did not handle matters the way you know your parents would have wished. You may be determined this will not happen to your family.

You may have many wonderful people in your life, so it will be easy for you to find someone you trust to be the executor of your estate. As you go through the steps of estate planning, finding someone trustworthy may be the easy part. However, trust is only one quality that makes a good executor. You may wish to consider other factors before you make your choice.

Are you losing trust in the executor of your parents' estate?

There is no doubt that one of the most difficult things someone may ask you to do is to accept the duties as executor of an estate. Often, those tapped for such responsibilities have little or no experience, and they may find the job tedious, time-consuming and overwhelming. You may have been relieved when your parents designated one of your siblings to manage the estate. However, things are not going as you expected.

Handling estate matters for a deceased parent is a tremendous responsibility, especially when there are siblings or other heirs in line to benefit from the assets. An executor has a serious duty to protect the estate as it goes through probate, which often takes several months to a year. While your sibling had many options for seeking assistance with his or her duties, if he or she failed to do so, you may be losing trust in your parents' choice for executor of their estate.

What is probate mediation?

Once an estate has been sent to probate in California, the court transfers the property or money to the proper beneficiaries. However, disputes may arise regarding whether a will is valid. If the deceased person did not have a will filed, sibling disputes or conflict between other interested parties may arise as to how the court should properly divide the assets.

According to the Superior Courts of California, if you are involved in a dispute but wish to avoid a drawn out, messy legal battle, the parties involved can all agree to give probate mediation a try to come to an agreement on the division of assets in a confidential manner. With mediation, a trained mediator works towards the goal of compromise and resolution while remaining in a state of neutrality. While the mediator does not make any of the final decisions regarding the case, he or she can help diffuse tense situations and facilitate communication and understanding between the parties to move towards a final agreement.

Do you need a probate referee?

If you have been asked to serve as the personal representative for a family member or friend's estate in Los Angeles, then unless you have prior experience in probate law, estate administration or asset appraisal, you are likely viewing your new responsibilities with a certain degree of trepidation. Not to worry; the court understands that not everyone is an expert in estate matters. One of the most important aspects of preparing an estate for probate is determining its value. If your loved one's estate consists of a large amount of non-monetary assets, that may be difficult. Fortunately, you can call upon the assistance of a probate referee. 

Probate referees are appointed to create an accurate appraisal of an estate's assets. Typically, they are attorneys themselves, certified public accountants, or have several years of experience in valuing and appraising property. Each county court usually employs one probate referee to help value assets such as: 

  • Real estate 
  • Automobiles 
  • Collectibles 
  • Business properties
  • Stocks, bonds and other investment accounts

Should you seek guardianship of a loved one?

Do you find yourself in a situation in which you are watching a member of your California family struggle to care for himself or herself, manage finances and simply navigate day-to-day life? This is a truly sad situation, but you may not be totally powerless. There may be legal options by which you can secure the right to care for and make decisions on behalf of your loved one. 

A conservatorship, sometimes called guardianship, is a legal tool that allows a person to make decisions for another person. Typically, the other person is incapable of making decisions, perhaps due to mental or physical incapacitation. If you believe that this would be in the best interests of your loved one, you would find it beneficial to reach out for the appropriate guidance.

Should you attempt to avoid the probate process?

Many California residents may look at the probate process with mixed feelings. For some, the proceedings may seem like an unnecessary use of time and money, and others may see it as a beneficial process for closing an estate. Whether your estate will need to go through the process may depend on the specific details regarding your assets and other personal affairs.

Though it could potentially have its complications, probate could also help ensure that surviving parties honor your wishes and that your assets go to the desired parties. Because you may wonder whether you should take steps to avoid the probate process when creating your estate plan, you may wish to learn more about the process.

Smart estate planning steps can save children’s relationship

When the surviving children of a recently passed California parent go through the probate process, emotions far greater than grief can flare. Old resentments can rear their heads, particularly if the last parent has not carefully planned specifically to prevent adding fuel to the flame. Often, communication is the most important tool.

As reported by Psychology Today, perhaps not much can cause more turmoil and relationship damage to adult siblings than the death of the parent. At times, old hard feelings may boil over during the difficult emotional task of laying a parent to rest and handling his or her financial affairs and estate arrangements.

Testamentary capacity and when it is missing

There are times in California when those left behind believe that the loved one who left a testamentary will, did not have the mental capacity to legally execute such a document. They believe that he or she was not of sound mind. Lack of testamentary capacity may be a basis to contest a will.

California law creates a presumption that all people have the ability to make decisions and be held accountable for those decisions or act. However, the presumption is rebuttable. Nonetheless, a mere diagnosis of a mental or physical condition is not enough. It does not mean a person lacks the capacity to execute a will or engage in other legal decision making.

Contesting a will

Individuals and family members in California who feel a will is incorrect or unfair may choose to contest, or challenge, it. It can be difficult to properly contest a will, and it is not successful in most circumstances. It is important to know who can contest it and for what reasons.

According to Consumer Reports, only an interested party can take part in contesting a will. While an interested party does not have to be related to the deceased, he or she does have to be someone who would inherit by law or is already in the will. State laws determine exactly what a surviving spouse is entitled to inherit, but many of them ensure that the spouse is due a certain minimum amount, so if the will does not demonstrate that, the spouse can often successfully challenge it.

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