The thought of your loved ones embroiled in a divisive battle over your estate assets after you are gone likely doesnât sit well with you. Unfortunately, there is no sure-fire way to prevent probate litigation, but there are things you can do within your estate plan to help decrease the likelihood of probate litigation. To get you started, the Essex Junction attorneys at Unsworth LaPlante, PLLC help you identify whether your estate is at risk for probate litigation.
Common Causes of Probate Litigation
While there are an infinite number of ways in which you and/or your estate can become involved in probate litigation, most boil down to either disagreement over how to handle an incapacitated family member or a dispute over how your estate should be handled after you pass away. Factors that put your estate at high risk for litigation include things such as dysfunctional family dynamics, sibling rivalry, or a blended family along with estates plans that omit an heir or that fail to distribute the estate equally among similar heirs. Ultimately, you can distribute your estate any way you wish; however, being aware of these high-risk factors can also help you plan accordingly should they be present in your estate.
Steps You Can Take to Reduce the Likelihood of Probate Litigation
Every estate plan should consider the possibility of probate disputes and include proactive measures to help reduce the likelihood of a dispute materializing; however, if your estate includes high-risk factors, you should be particularly vigilant about including tools and strategies to prevent disputes, including things such as:
- Incapacity Planning: Include a comprehensive incapacity plan that will kick in if you become unable to handle your own affairs or make your own decision. Typically, such a plan will include a healthcare Power of Attorney that dictates who should make healthcare decisions for you if you cannot make them and a financial POA and/or revocable trust that gives someone the legal authority to assume control of your finances and assets if you are incapacitated.
- Avoid DIY Documents: Probate litigation frequently starts because the estate includes DIY estate planning documents. Handwritten forms and documents from online resources often include legal errors, mistakes, outdated information, or fail to fully distribute your estate, leading to litigation. Ultimately, your loved ones may pay far more in legal costs to litigate the estate than you would have paid to have an estate planning attorney prepare the documents.
- Choose Fiduciaries Wisely: Be realistic about your family dynamics, including the presence of sibling rivalry or hostility in blended family situations. Be aware of the impact appointing one child over another as your Executor or as the Trustee of a trust will likely have on the family dynamics and the likelihood of conflict. Sometimes, it is better to appoint a neutral third party or professional fiduciary to administer your estate or a trust agreement.
- Avoid Undue Influence: While it is often a good idea to share the details of your estate plan after it is complete, avoid doing so while you are creating your plan. If a beneficiary is part of the creation process, other members of the family may claim that you were unduly influenced by that individual when it comes time to administer your estate.
- Head Off Claims of Lack of Capacity: Claiming that a Testator lacked the necessary capacity to create a Will is a common claim when a Will is challenged. To head off such claims, submit to a thorough medical evaluation around the time you execute your Will. A doctorâs examination confirms you are of sound mind and body and that you can make informed decisions when signing your Will.
- Avoid Verbal Promises: Do not make verbal promises when it comes to gifts or inheritances. Not only are they typically unenforceable, but they frequently lead to probate litigation if the promise is not reflected in the Will submitted for probate.
- Update Your Estate Plan: Review your estate plan on a routine basis and make immediate changes when life events justify doing so such as when there is a birth, marriage, divorce, death, or you change how you want your estate distributed.
Do You Have Additional Questions about How to Avoid Probate Litigation?
For more information, please attend one of our upcoming FREE webinars. If you have questions or concerns about how to avoid probate litigation, contact an experienced Essex Junction estate planning attorney at Unsworth LaPlante, PLLC by calling 802-879-7133 to schedule your appointment today.
- Young Families Estate Planning in Vermont - May 5, 2026
- 8 Vermont Medicaid Myths Seniors Need to Understand - April 30, 2026
- Things to Consider If Someone in Your Estate Plan Is Not a U.S. Citizen - April 23, 2026
