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Can I Avoid Estate Litigation?

Recently, many clients have visited my office due to their estate litigation. I do not think that this experience is limited to my office. The first-generation Korean immigrants, who had made a living, accumulated wealth. Now, the wealth gradually transfers to their children. It causes conflicts between the heirs in the family, and there are increased numbers of conflicts that eventually lead to estate litigation.

Occasionally, some clients misunderstand that they can avoid all estate litigation by making a living trust. Some others ask whether there is any estate plan that avoids estate litigation. However, estate litigation can be filed even with a living trust, and no estate plan can make it possible to avoid the litigation altogether. However, estate litigation can be resolved quickly, depending on how you plan for your estate. Some people misread this and argue they will not make any estate plan since a living trust cannot avoid estate litigation. However, this is the worst of the worst decisions. This is because, without a living trust, the heirs must process all estate litigation, with nobody receiving any portion of the estate.

Let's say a wealthy person in a Korean town died without any estate plan. Then, the probate court must determine whether the rich person was married or remarried and whether his children are married. If he is remarried, the court should also check out how long he was married to his current wife and whether he was retired before or after he was remarried. So, there are many factors that the court should figure out if there is no estate plan. This is because, depending on the factors, the estate distribution rate for separate and joint properties can vary significantly. Therefore, if there is no clear boundary between separate and joint property or if the ratio of individual and joint ownership on a particular property is not clear enough, estate litigation between children or between current wife and former wife's child can be filed, expectedly.

On the other hand, estate litigation can be filed even with a thorough living trust—which is quite the usual situation. For example, the grantor wants a child to receive more estate than the other or even to have the entire estate. If your estate distribution ratio is unusual like this, you should prepare for estate litigation.

Most of the litigation cases are filed based on two premises. One premise is that the grantor made a living trust or gave the estate when his mental status was not stable enough. The other premise is that one of the heirs forced the grantor to provide more estate to him or her. Accordingly, when the estate distribution is not usual, to counter the first premise, one should let the grantor take a mental health diagnosis and receive a doctor's note on mental health from a psychiatrist. In this situation, the psychiatrist should be available to give testimony to the court. Therefore, it is essential to find a psychiatrist who has witness experience in court and understands the structure of a living trust to take a mental health diagnosis.

Also, to demonstrate that the grantor made the estate plan of his own free will and without any external force, another lawyer—who is different from the grantor's lawyer—needs to provide an independent review of the grantor. In other words, the lawyer, who is not the grantor's lawyer, should meet and interview the grantor and then do a review that states the grantor decided on the estate distribution without any physical or mental pressure. Most importantly, the most important thing is to avoid estate litigation by having regular conversations with family members.


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