The last thing anyone wants to worry about after losing a loved one is arguing with their siblings, or other family members about their inheritance. While very few expect it, this is actually a common occurrence during the probate process and typically results from a disagreement over the division of assets. Knowing how to navigate family emotions and conflicts during the probate process is essential to maintaining familial bonds and fostering compromise during these difficult times.
What Probate Problems Are Most Common Between Siblings?
Even the closest siblings with harmonious relationships can find themselves disagreeing during the probate process. Remember that this is an especially emotional time, and it can be difficult to approach these sensitive matters with a clear and calm mind. While there are certainly countless problems siblings may face during the probate process, there are a few that seem to cause issues time and time again.
Here are a few of the most common sibling probate problems:
- Disagreement over who is appointed as a personal representative.
- Differences in inheritance and the share of the gifted estate for each sibling.
- Challenging a parent’s last will and testament.
- Disagreements regarding real estate and personal property.
- Reimbursement to maintain estate assets.
How Will The Estate Be Divided Between Siblings?
The division of the estate is not always an equal divide. Usually a parent’s last Will and Testament will include a section detailing the division of their assets. In this section, the Will details which of the siblings have rights to which property passed from the decedent.
Many parents and relatives choose to divide their assets evenly between siblings. However, when the division of assets favors one sibling over another, tensions can usually arise between siblings over what is and is not fair. This is especially difficult if the family is not on good terms.
Ultimately if there is a final Will and Testament, it is completely up to the wishes of the decedent that determines how their assets will be divided amongst their surviving family members. There are many rational reasons why a parent may divide their estate unequally, providing one sibling with more inheritance than the others. These can include:
- Leaving a small portion of the estate to a sibling who received greater financial support while their parent was still alive.
- Receiving divisions of the estate related to a sibling’s current financial position (for example, those with less financial security may receive more than their siblings).
- More significant portions were left to siblings who cared for their parent(s) prior to their death.
- Greater financial support to siblings who are disabled or require constant medical care.
- Leaving greater divisions to those with more grandchildren.
What If There Is No Will?
When a parent dies without leaving a Will, their assets are dispersed according to intestate laws. The decedent’s intestate estate is distributed equally among his or her children. Certain factors, such as whether siblings are children from different marriages, could have an impact on intestate distributions among siblings.
What Should I Do If My Sibling Won't Participate In The Probate Process?
Even if your brother or sister refuses to join the probate process, the estate can still be opened. Of course, the appropriate amount of notice must be provided to all siblings involved in the estate. If your sibling formally objects to the opening of the estate, there may be a required hearing. If this occurs, it may be in your best interest to hire a probate attorney to represent your case.
Does Power Of Attorney Affect Probate?
If a sibling or family member had a power of attorney that gave them authority to make decisions on behalf of a parent or family member, once that person passes away that document is no longer valid. The only way that someone is permitted to have the authority to act as the personal representative or executor of the decedent’s estate is to be given that authority by the court.
Avoiding Sibling Problems During The Probate Process
Many of the challenges that arise after a parent dies can be addressed by planning ahead of time. Having a Will that defines which sibling receives which property can be the most significant step a parent can take.
It is advantageous if the siblings have a solid connection and can see the broad picture. That is, they could “win” the probate fight and obtain the financial conclusion they desire, but at the expense of their close relationships. Plus, the sad truth is that even when a parent properly plans and discusses the content of their last Will and Testament with their children, disputes can still arise.
Here are a few things that may help…
Choose A Non-Sibling Executor
Many parents default to selecting one of their children (usually the oldest) as the executor of their estate. This can cause a great deal of discomfort among other siblings, especially if they do not feel the division of assets is fair. For this reason, it may be best to ask or hire someone unrelated to the estate to handle these responsibilities.
Mediation
The parties can meet with an unbiased skilled third party, the mediator, for mediation. The mediator does not take on the role of a Judge. Rather, he or she stimulates conversation, assists in framing issues, promotes interaction, and assists the parties in reaching a win-win solution.
Plan For Possessions
Some families have quarreled over beloved personal goods rather than monetary assets. Even though an item isn’t particularly valuable in terms of money, it may be priceless in terms of sentiment. Going through a deceased parent’s home is an emotional process that may be worthwhile to complete before they pass away.
If you would like more information on the probate process in Illinois, please contact me for a no obligation consultation. I would be happy to discuss your specific situation and help you navigate these difficult waters. My name is Maria Mastrolonardo, I am a Illinois Certified Probate Real Estate Specialist with RE/MAX Enterprises. This is ALL I do; I help guide families through the process of selling real estate in probate and I would be happy to help you as well.
Call me today at: (630) 248-6077, or email me at mmastrolonardo@remax.net