The following is an excerpt from an article I thought you would find interesting by Sam Moak in the Huntsville Item on 11/27/21. I, like Mr. Moak, who is also an estate planning attorney, engage in what he calls “preventive law”. That, as he says below “seeks to anticipate and prevent legal problems and litigation”. Here is what Mr. Moak has to say …
“I have written a similar column before, but I want to stress that if you are in a second (or third or fourth) marriage and have children from these different relationships, take responsibility and sit down with an estate planning attorney to create an estate plan. I, like many estate and elder law attorneys, spend a large part of my practice engaged in preventive law.
Preventive law is a law practice that seeks to anticipate and prevent legal problems and litigation. It is an approach found in several other areas of law besides estate planning and elder law. Many of us who practice elder law already use counseling techniques and many of the documents we prepare are with the goal of avoiding litigation (such as an expensive trip to probate court or other legal or financial harm that might have been avoided with appropriate planning).
Recently, I was involved in an estate matter in which the husband, in a second marriage, died without a will. Both the husband and wife had children from their prior relationships. While they had been married for over 30 years, when the husband died without a will or estate plan, it became evident there were issues in the family. If you believe your children and stepchildren will somehow “get along” after you are gone, I am here to tell you that can be a costly mistake.
The cost to hire attorneys, appear in court, argue over heirship, and who should be the administrator of the estate is very high. This will leave your loved one with less money and a bag of issues that I can’t believe anyone would want. To avoid this monetary and emotional cost, sit down with an estate planning and elder law attorney. If it is your desire that your final wishes be carried out without conflict or litigation, then you should seek the assistance of an attorney experienced in probate, estate planning, and elder law matters. He or she can guide you with regard to decisions and language that will make the transfer of your assets a peaceful experience instead of an expensive and stressful one.
If you are already involved in a dispute over a deceased loved one’s estate, an experienced Cincinnati estate planning attorney can help guide you to a resolution. The conduct of an attorney would of course vary with the situation and depend on the unique circumstances of the case or conflict. With that said, there are some behaviors that would distinguish the peacemaking mindset, and which would be designed to obtain win-win outcomes.
These include a willingness to (1) agree to stipulations as to facts and the admission of evidence along with other requests to hasten the proceeding; (2) accommodate requests from the opposing party or counsel for schedule changes due to illness, family, or work responsibilities; and (3) avoid the “gotcha” strategy when a mistake is made by an opposing party or counsel; and (4) abstain from negative personal or otherwise disparaging comments. This list is not meant to be exclusive or exhaustive – the bottom line for all these “indicia” of the avoiding conflict mindset is that the attorney acting as a peacemaker is an erstwhile advocate for family or intergenerational healing and that this restorative approach can be consistent with the interests of the client.
When elder law attorneys act as probate peacemakers or as elder/probate mediators, they bring their substantive knowledge of and familiarity with these preventive steps and techniques.
This combination of substantive experience and the preventive approach to a problem or set of problems combine in a way that can help predict how a client and members of a family or another interested group might behave in the future. That can mean that an attorney serving as a peacemaker or as counsel to a disputing party can help ensure that the client has the benefit of strategic advice before future problems or troubles appear on the horizon. To the extent that a dispute is not definitively resolved by some process, or if related issues crop up, a peacemaker can be enlisted to draft an agreement that can guide the parties toward productive management of anticipated future disputes.”
Remember: “An ounce of prevention is worth a pound of cure.” When making your estate plans or when probating an estate or administering a trust, do not go it alone. Be sure to engage a Cincinnati estate planning attorney.
For more information about estate planning, probate, or trust administration in Cincinnati (and throughout the rest of Southwest Ohio) and to review free resources regarding estate planning, probate, or trust administration, visit my website. If you have questions regarding this article or a particular legal matter, feel free to contact me at 513-399-PLAN (7526). David H. Lefton is an Estate Planning and Probate Attorney. He is a partner in the law firm of Barron, Peck, Bennie & Schlemmer.