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Newark Family And Estate Law Blog

When sibling rivalries grow wildly out of control, it can result in major problems for everyone involved. This is especially true when it comes to matters involving the assets or estate of parents, as is the case with probate.

Some sibling rivalries can even escalate to the point of litigation. But how, and why?

Sibling disputes of the past

Metrowest Daily News discusses potential sibling disputes that might arise over probate. In general, past wounds and negative ties tend to get aggravated in the wake of a parent’s death due to the emotional disturbance it brings. Add in the fact that it involves assets, and it creates a powder keg.

There are two main reasons for sibling disputes to rise to the point of litigation. The first has to do with old bad blood and the poor handling of a parent’s estate. In some cases, a parent may leave unequal or inequitable assets divided up among their children. This can stoke old resentment about perceived favoritism and cause children who got less to lash out and litigate in an attempt to even the divisions out.

How can you avoid them?

The easiest way to avoid this is by the parent making sure to divide the assets equally from the start. If that is impossible for some reason, then it is important for the parent to make a clear statement to their child about why this has happened.

The other issue is undue influence. This involves one sibling accusing another of manipulating an elderly parent, especially if they have mental health or memory problems. The accused sibling likely did this to gain a more favorable mention in the estate plan. There is not much to do in this case but go through litigation, unfortunately, which is why having legal aid may be of service.

If you are like many couples, you and your spouse may want to try to resolve your divorce without the stress and financial burden of the litigation process. Mediation and collaboration are two alternatives to divorce court that offer a more constructive and potentially less costly path forward.

While both approaches involve working out the terms of your separation outside of the court system, each method involves a slightly different process.

What is a mediated divorce?

Divorce mediation usually involves you, your spouse and a neutral family law mediator. The mediator acts as a facilitator rather than a decision-maker, promoting effective communication, pinpointing areas of conflict and guiding you toward solutions that you can both agree to. Decisions that you make in confidential mediation sessions are non-binding until you present your agreement to the court for approval.

How is the collaborative process different?

Similar to divorce mediation, during collaboration both sides agree to negotiate in good faith and not to pursue litigation. However, you and your spouse may each hire your own legal counsel to advise you during the process. You, your lawyer, your future ex and his or her lawyer work as a collaborative team to resolve issues through compromise rather than conflict. As with mediation, you and your spouse maintain control of any decisions until you submit an agreement to the court.

If your divorce goes before the court, a judge may be the one making crucial decisions ranging from how to divide your property to how you will handle parenting schedules and child support. However, if you and your future ex can agree to work together, either collaborative or mediated divorce may help you to create a divorce agreement that truly works for your family’s specific circumstances.

As you assemble your estate plan, you may encounter terms and estate planning documents you know little about. For instance, are you familiar with advance directives?

The American Cancer Society breaks down advance directives as estate planning documents. Learn how to ensure your loved ones know your end-of-life desires even if you cannot communicate them verbally.

The basics

For an advance directive, you draft a legal document that conveys your medical choices if you become medically incapacitated. The document notes your end-of-life medical desires and the individuals you want to make decisions for you when you cannot. For instance, if you fall into a coma or develop Alzheimer’s, you may not have the ability to communicate whether you want to donate your organs or receive specific medical treatments. Rather than use their most favorable guess, your friends and family instead refer to your advance directive to understand what you want and do not want.

Types of advance directives

You have a few different options if you want to create an advance directive. Living wills are advance directives that activate at the end of life when a person falls permanently unconscious or terminally ill. With a durable power of attorney for health care, you name a person as your proxy to make medical decisions for you if you cannot. While a Physician Orders for Life-Sustaining Treatment form lets you communicate your health care wishes, it is not an advance directive.

Put your advance directive in place sooner rather than later. While you may not like thinking about the end of your life, pushing past your anxiety and planning for the inevitable helps your loved ones take care of you.

Social media has become a primary source of communication and connection. You may remain active on social media through the good and bad times, but you may want to reconsider this during a divorce.

There are instances where spouses have used social media posts to counteract assertions by the other in court. Gain some insight into how your online sharing may turn against you during your divorce.

A picture is worth a thousand words

Posting photos is one of the top reasons you may utilize social media. Once your divorce gets going, you may want to reconsider. Pictures often tell a story that you may not intend. For instance, going out to drink with friends may appear inappropriate to someone looking to damage your reputation in court. A judge may also look at vacation trips unfavorably, especially if you assert that money is tight.

The ugly truth about privacy

You may believe posts are private and only privy to those you choose. This is not always the case. Your privacy settings do not apply to what others do with your posts. People in your circle may unintentionally share your comments and posts with your ex. The better option is to refrain from posting any information about your separation and divorce. Even if you believe the comments you make are on the up and up, your words may wind up twisted by the other side.

Understandably, you may want to turn to social media for support during a difficult transition. However, when it comes to splitting up with your ex, remain mindful that everything you put online may come back to hurt you in the end.

If you have elderly parents, you may want to encourage them to put their financial affairs in order. After all, creating a comprehensive estate plan is one of the more effective ways for them to maintain control over end-of-life matters.

You can probably trust your parents’ estate plan to reflect their genuine intentions. Still, senior citizens are often susceptible to undue influence. This type of manipulation happens when someone supplants his or her interests over your parents’ wishes.

Isolation

It is not uncommon for seniors to experience both loneliness and isolation. If your mother and father have lost contact with close family members and friends, they may be looking for a caregiver or another person to fill the void. If this person has unscrupulous intentions, he or she may be able to cajole your parents into drastically changing their estate plan.

Incapacity

When you think about mental incapacity, you may envision an all-or-nothing change. That often is not the case, though, as older individuals tend to lose mental capacity over time. Put simply, if your parents are not capable of making financial and legal decisions, someone may be waiting to take advantage of their cognitive decline.

Ageism

According to a recent study in the Journal of Psychiatry Research, older individuals often experience extreme ageism. This type of discrimination includes differential treatment because of actual or perceived age.

If your parents are sensitive to ageism, they may be reluctant to ask relatives and friends for help with complex estate planning matters. This, of course, may leave them vulnerable to undue influence from someone they know less well.

If you can stop undue influence while your parents are alive, you can protect both their interests and your inheritance. After they die, though, it may be necessary to contest the estate plan to ensure you receive your fair share of your parents’ wealth.