Disputes also arise when siblings must dispose of a parent’s personal property, i.e. assets other than money or real estate. Often, a testator may not make specific bequests of personal property in his or her will. Or someone may die intestate, meaning without a will. If so, it may be up to the children to decide how to divide their parent’s personal property. Dividing up the family china can become an emotional and expensive task if the parties are unduly materialistic, obstinate or sentimental. These scenarios provide occasions for sometimes Solomon-like resolutions, such as picking cards to determine the order of selecting certain items. Such school yard justice may help quell the emotions and provide an ultimately fair disposition.  

Sibling disputes are why parents, as difficult as it may be to talk about finances or mortality with their kids, should communicate with their adult children about postmortem planning. Unfortunately, few do. Many adult children are surprised to learn upon their parents’ deaths that their parents had much more or much less than they expected. Setting reasonable expectations helps minimize problems when a parent passes away. Estate plans are very private things, but a little explanation from mom or dad can go a long way toward quashing a family feud.

Communication among the siblings is also the key to avoiding prolonged combat. No matter how complicated the family baggage, it is prudent to try to talk through issues early in any type of a probate matter. Siblings should discuss time lines, who is going to do what and how they will communicate throughout the probate process. Some siblings, often with much success, make a pact at the outset of a probate matter not to let greed or petty squabbles ruin their family relationships. These folks usually had strong relationships before mom or dad passed away.   

In virtually all probate matters, it is important to have knowledgeable attorneys work with the parties to explain their rights and represent their interests in any adversarial proceedings. Mediation may help the parties find compromises short of protracted litigation.  However, if the parties are unwilling to give in, or if one sibling or faction of siblings is very unreasonable, compromise may be impossible and a trial may be necessary to settle the dispute. Litigation can of course be expensive. But perhaps more significantly, litigation tends to augment any rift in the sibling relationship.
At every step during litigation, siblings should assess not only the merits of their legal claims, but also the potential adverse, and sometimes permanent, impact the litigation may have on the family.  

The legal system cannot engineer relationships. A court seeks to administer a will in accordance with the intent of the decedent and to serve the interests of all beneficiaries. Siblings who disagree about the administration of an estate have to make very personal decisions about whether the money at issue, or the principle of the matter, justifies the likely damage to the sibling relationship and, often, damage to the relationships of future generations.

Patricia L. Davidson is a partner in Mirick O’Connell’s probate, trust and fiduciary litigation group and the business and general litigation group.

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