This document discusses strategies for estate planning to avoid conflicts and contests between beneficiaries. It recommends clearly communicating wishes to beneficiaries during life to prevent misunderstandings after death. The document also suggests simplifying the division of estates, carefully selecting trustees to avoid bias or conflicts of interest, including no-contest clauses, and giving trustees discretion in areas likely to cause disputes.

1. DESIGNING YOUR ESTATE PLAN TO
AVOID CONFLICT AND CONTESTS
BARRY L. ADAMS
Attorney at Law
Law Office of Adams & Rafferty, P.C.
1400 N. Dutton Avenue, Santa Rosa, CA 95401
(707) 542-6644
barry@adamsandrafferty.com

2. GO BEYOND THE BASICS
• Basic estate planning involves signing the necessary
documents: will, trust, power of attorney, advance
health care directive, as well as funding your trust
• To avoid conflict – you need to understand the issues
and figure out ways to avoid conflict between your
beneficiaries
• Have an honest discourse with yourself, your spouse
and your attorney about potential discord in the family
and hot button issues. Don’t hide your head in the
sand and hope for the best – plan for the worst
• One of my sayings is: After the parents die, the family
goes from hierarchy to anarchy.

3. A WORD TO THE WISE
• If beneficiaries want to fight - they will find a
reason to fight. Your goal is to limit their
opportunities to do so by proper planning.

4. COMMON DISPUTES THAT END
UP IN COURT
• Distribution of personal property, such as family heirlooms
and cherished items
• Loans to children/beneficiaries
• Joint title and possession Issues
• Unequal division of property among children
• Unwritten and unfulfilled promises to children and others
• “Deathbed” Amendments
• Caregiving claims by family members
• Blended family issues
– Amendments by widow/widower
– Splits between children and step-children

5. BE REALISTIC ABOUT FAMILY
DYNAMICS
• Be upfront with your attorney about potential
conflict between siblings
• Family dynamics change after the parents’
death
• Consider a family meeting prior to your death
– or a letter to be opened after your death
• Acknowledge skeletons in the closet.
Familysecrets come out as the children go
through your drawers after your death

6. CONFLICT IS A BYPRODUCT OF
CHILDHOOD SLIGHTS AND INJURIES
• Most of the issues that arise have their
genesis in childhood slights and fights.
• This is “sandbox stuff.”

7. SIMPLIFYING DIVISION OF YOUR
ESTATE
• Battleground Areas:
– Personal Property
• Jewelry, Antiques, Photos, Other Prized Possessions
– Family Home
• Option of one child to purchase
• Child living in home at time of parent’s death
• Child as caregiver entitlement issues
– Loans or Gifts during lifetime
• Documentation during life
• Forgiveness or acknowledgement in trust instrument
– Family Business

8. AVOID MISUNDERSTANDINGS
• Communicate wishes to children during your
life to avoid misunderstandings and ill feelings
after your death
• If you do not want to communicate your
wishes during life, you should make very clear
those wishes in your trust and possibly in a
supplemental letter to the children in your
own words

9. NO CONTEST CLAUSES
• Recent law change weakens no contest
clauses and creates a probable cause
exception to the no contest clause
• You MUST give some amount of money to a
child for there to be some “teeth” in a no
contest clause

10. SELECTION OF A TRUSTEE
• Qualities needed
– Time to perform the job
– Can handle difficult business and financial decisions
– Ability to get along with others, in and outside the family
– Ability to communicate verbally and in writing
– Ability to treat all beneficiaries respectfully and fairly
– Personal financial responsibility, i.e. no outstanding
personal debts, bankruptcy, child or spousal support
issues, tax liens
– Close geographical location preferred
– Saint-like qualities come in handy

11. TRUSTEE SELECTION OPTIONS
• Children (Sole or Co-Trustees)
• Trusted family member/non-beneficiary
• Corporate/Bank
• Private Fiduciary

12. CO-TRUSTEE ISSUES
• Potential for conflict
• Delays due to requirement for two signatures
• Usually one trustee does most of the work
• Deadlock can occur
• Additional legal expenses including
communications, mailings, potential for
attorney for each trustee

13. SUMMARY
• Careful selection of a Fiduciary
• Consider a Restatement of Trust if you have a number of
amendments to avoid confusion and possible bad feelings
• Clear communication about intent prior to death and in the
trust instrument
• Include a no-contest clause
• Consider providing the trustee with discretion or other
guidance in certain areas if conflict arises, i.e.
– Dispose of personal property to charity or by sale if dispute
arises
• Avoid Co-Trustees in most cases
• If you are disinheriting one of your children, make sure you
explicitly state that in your trust