A parent dies, and something about the paperwork does not sit right—a will changed late in life, a trustee who has gone quiet, a caregiver who ended up with more than anyone expected. Family members face a choice: Let it go or take the fight to court. 

Before choosing either path, families should understand what estate litigation actually costs, not only in dollars, but in time, energy, privacy, and relationships. They should also know that going to court is not the only way to get answers. 

Why Families Go to Court

Families like to think that they are strong enough to weather difficult times and that nothing could be harder than losing a loved one. But grief does not always bring people together. It can just as easily push family members apart, especially when suspicions are raised about whether a will is truly someone’s last will and testament or something improper occurred. 

The reasons families may go to court over an estate can vary as much as the family members and personalities involved, but they usually fall into a few broad buckets:

• Will contests. A will contest involves a fight over the validity of the document itself. Families usually land here when they suspect that a loved one lacked the mental capacity to sign a new will or when they believe someone used undue influence, coercion, or manipulation to push through a change to the estate plan.
• Trust disputes. Trusts are designed to keep things private and out of court, but they can still trigger major fights that are anything but private. Disputes may arise when beneficiaries believe the trustee is mismanaging assets, investing irresponsibly, failing to provide the required financial accountings, or wrongly withholding distributions.
• Fiduciary fights. Even when a will or trust is valid, disputes may arise over its administration. Beneficiaries may seek court intervention if a fiduciary causes unreasonable delays, fails to communicate or account for assets, improperly sells property, mismanages assets, or misuses funds.
• Guardianship and conservatorship fights. Not all estate litigation happens after someone passes away. When an aging parent or family member begins losing capacity, siblings may end up in court fighting over who should be appointed to manage their healthcare decisions (guardianship) or their finances (conservatorship).

• Financial exploitation and abuse. Sadly, some court battles are rescue missions. These cases may involve going to court to stop a predatory neighbor, a dishonest caregiver, or an unscrupulous relative who has used a power of attorney, account access, isolation, or pressure to take advantage of a vulnerable person.
• Tangible personal property disputes. The small, sentimental items—not the large stock portfolio or retirement account—often cause the most bitter, unresolvable fights. When an estate plan does not specify who gets Mom’s wedding ring, Dad’s watch, or the family photo albums, siblings may spend far more money fighting over those items than they are worth. 

Amid an aging population, more blended families, the rise of digital assets, and other factors, estate disputes—in particular, cases involving undue influence, lack of testamentary capacity, and elder financial exploitation—are becoming “more numerous and meaningfully complex” compared with prior generations. 

While much family infighting is due to a lack of planning, there are also cases where the planning itself is called into question. Whatever the conflict’s cause, the costs of resolving it can quickly exceed the value of the matters under dispute. 

The (Potentially) High Price of Estate Litigation

Many people see the dramatic court battles on television and assume that filing a lawsuit is the quickest way to find justice or closure. But in real life, estate litigation rarely unfolds like a courtroom drama. It can be expensive, slow, invasive, and emotionally draining. And in some cases, even winning can feel like losing if the process takes up a great deal of a family’s time, money, privacy, or goodwill. Before pursuing litigation, families should consider the following:

• Financial costs. Going to court requires a significant up-front and ongoing financial investment. Attorney fees, which typically run hundreds of dollars per hour, are only part of the equation. A will contest based on lack of capacity or undue influence may also call for expert witnesses, such as medical professionals or forensic accountants, to review records and testify. Add in court filing fees, deposition transcripts, and process servers, and the bill can grow rapidly, sometimes consuming the very inheritance you are fighting to protect.
• Time investment. Estate litigation can drag on for months or years. Gathering evidence such as medical records, financial statements, and text messages takes time. Then come the courtroom proceedings: depositions, hearings, and possibly a trial, all of which must fit into a crowded court schedule. If family members live out of town, the logistical burden and expense of traveling to and from court can impose another layer of cost. 
• Emotional toll. The financial expense of an estate battle, which may be considerable by itself, could be outweighed by the emotional drain. A lawsuit forces family members to take sides, creating divisions that can carry over long after the case ends. Living with the uncertainty of a pending lawsuit can also cause immense stress, keeping people stuck in a holding pattern of grief and frustration instead of finding closure and moving forward with their lives.

When Going to Court Is the Right Call—and When It May Be a Costly Mistake

We live in a litigious society that can, at times, overemphasize the court’s role in solving disputes. In some situations, an unbiased judge may be the best source of resolution. But given the costs, financial and otherwise, of estate litigation, going to court is not always the most prudent response.

Other times, walking into a courtroom may be the only way to protect a loved one’s legacy, stop a wrongdoer, or secure your future. The key is separating cases where the facts justify the fight from those where the conflict is a zero-sum game—or worse.

When Going to Court May Make Sense

• The stakes are worth the costs. If a caregiver, new spouse, or relative used undue influence to divert a substantial portion of the estate, such as a family home, business interest, or life savings, the cost of litigation may be a necessary investment to recover what was wrongfully taken.
• The evidence is strong and concrete. Suspicion alone is not enough to win a lawsuit. But documented proof—such as a medical diagnosis proving that Mom lacked cognitive capacity when she signed or bank records showing that an executor misused estate funds—may give the family a stronger foundation for filing suit.
• A vulnerable person needs immediate protection. When a living family member is actively being exploited financially, neglected, isolated, or controlled by someone abusing a power of attorney, emergency court intervention could be necessary to protect them.

When Court May Be an Unreasonable Risk

• The fight is fueled by principle, not practicality. It is common to hear “It’s not about the money, it’s the principle of the thing.” In court, however, “principle” can be expensive, and the ends may not justify the means. A courtroom victory could feel more like a loss if the legal fees exceed the amount at stake (e.g., you spend $50,000 in legal fees to win a $20,000 inheritance).
• The claims rest entirely on hurt feelings. The courtroom is not a venue for fixing emotional wounds, such as Dad leaving your sibling a larger share because they were the favorite, or old, unresolved childhood rivalries. Absent legal grounds such as fraud, lack of capacity, or undue influence, the case may not survive, even as the legal bills live on.
• The evidence is mostly anecdotal. Oral promises are incredibly difficult to prove in court, and fighting an official estate planning document with vague memories or informal promises can be a high-risk gamble. The court is unlikely to give much weight to an argument that relies on “Mom told me 10 years ago I’d get the house” when her written, signed will says otherwise. 

The choice to litigate is not all or nothing. A third option lies somewhere between a full-on court battle and letting things go. 

Mediation as an Alternative

For families caught in the middle of an estate dispute, mediation can provide answers without the scorched-earth dynamics of a courtroom battle.

In mediation, the family and their respective attorneys meet with a neutral third party—the mediator—whose role is not to impose a decision but to help the parties find a resolution they can agree on. Unlike litigation, in which a judge hears evidence and issues a binding ruling, mediation keeps the outcome in the hands of the people involved. If it does not work, the courtroom is still an option—the two paths are not mutually exclusive.

Mediation offers the following advantages over a full-blown court battle: 

• You maintain control. In court, the final decision is in the hands of a judge. In mediation, no agreement is reached unless you consent to it. Rather than rolling the dice, you keep control over the outcome. 
• Saves money and time. Since mediation happens outside the courtroom, it can frequently be resolved more quickly than litigation. This shortened time frame can reduce attorney fees and court costs.
• Preserves privacy. Court battles can become a matter of public record, where filings, allegations, financial details, and messy family history may be easier for others to access. Mediation happens behind closed doors, helping keep your family’s private business private.
• Leaves room for healing. Trials are inherently adversarial. They are designed to declare a winner and a loser. Mediation focuses on finding a mutually acceptable resolution, which makes it more likely that family relationships can eventually be repaired.

Evaluate Before You Litigate or Mediate

Families may see estate administration as a frictionless process that follows established procedures until they experience it firsthand and see all the touchpoints that can escalate into differences of opinion and open conflict.

Disagreements should be expected. Not everyone will agree on everything. But when communication breaks down or suspicions are more serious, the next step may be to meet with an attorney to explore other options. 

Believe it or not, it is not easy to disinherit your spouse in the United States. In many states and the District of Columbia, you cannot intentionally disinherit your spouse unless your spouse agrees to receive nothing from your estate in a prenuptial, postnuptial, or other marital agreement. However, the same is not true for other family members. Generally, you can use your estate plan to disinherit your siblings, nieces and nephews, grandchildren, and sometimes even your children.

Beware: Spousal Disinheritance Laws Vary Widely by State

Unfortunately, no one set of rules governs what a surviving spouse is entitled to inherit. Instead, the laws governing spousal inheritance rights, such as elective share and community property laws, depend on the state where you live or own property, and they vary widely. Based on state laws, the surviving spouse’s right to inherit may be based on one or more of the following factors:

• how long the couple was married
• whether or not children were born of the marriage
• the value of what the deceased spouse solely owned
• whether the surviving spouse inherited anything from the deceased spouse outside of probate court (e.g., as a designated beneficiary or joint owner)
• the combined value of an augmented estate, which includes accounts and property that are subject to probate and accounts or property that were automatically transferred to a named beneficiary by operation of law (payable-on-death, transfer-on-death, or beneficiary designation form)

In Florida, a surviving spouse may choose to take an elective share, which is 30 percent of the deceased spouse’s elective estate. The elective estate includes probate assets and certain nonprobate assets, such as payable-on-death and transfer-on-death accounts, joint accounts, revocable trust assets, the net cash surrender value of life insurance, annuities, and retirement accounts. The decedent’s debts reduce the elective estate.

In addition, state laws vary widely regarding the time limit within which a surviving spouse can seek their inheritance rights, which can range from a few months to a few years.

Disinherited Spouses Need to Act Quickly

If your deceased spouse has attempted to disinherit you, seek legal advice as soon as possible before state law bars you from enforcing your rights. Only an experienced estate administration attorney can help you weigh all your options and protect your interests as a surviving spouse.

While television and movies provide great entertainment, they are not always factual. Even shows based on real events are not entirely accurate. Creators of television programs and movies will often alter details of a story or situation to provide an enjoyable experience. Because of these widespread embellishments, people often develop misconceptions about many industries and professions, including attorneys and estate planning.

The Truth about Creating and Revising a Will

People think that it is easy to write or change a will. Some movies or television shows imply that all you have to do is write something down and put it into an envelope for safekeeping.

In the real world, a will that is not created properly may be considered invalid. The local probate courts determine whether the will or any changes to the will meet state law requirements. For example, states have differing rules for whether a will can be handwritten or typed, and if so, what features or provisions it must contain. If the creation or updating of the will does not comply with the law, extra time will be taken to determine if the court can accept the will or if the deceased’s money and property will be distributed according to the state’s laws instead. The resulting confusion and likely conflict will cost the family extra time, money, and hassle to get through the probate case.

Gathering for the Reading of a Will

In movies and television shows, there is often a dramatic scene where family members gather in a lawyer’s office for the reading of the will. The atmosphere is usually tense, and everyone is eagerly waiting to find out who gets what.

In reality, the reading of the will is not a spectacular event. In most cases, the contents of the will are communicated to the beneficiaries by the executor or through legal channels. There is typically no gathering, and the process is more private. Some families may have more realistic expectations about the terms of the will based on prior family conversations about estate planning and will not be blindsided when their loved one passes away. Other families may find out the details of the will after it is filed with the probate court and may be hurt or angered when they learn what is in it (or not in it) for them.

Not Every Matter Requires an Appearance Before a Judge

When the expectations of family and loved ones are shattered in a movie or television show, everyone immediately considers contesting the will. Movies often depict legal matters, including estate planning, as requiring an appearance before a judge; cases are argued in a courtroom and include cross-examinations and emotional accusations.

Realistically, in most states, an uncontested informal probate can occur without ever stepping foot inside a courtroom. Further, in situations where court appearances are necessary, most matters can be resolved outside the courtroom through negotiation, mediation, or other methods. Estate planning documents such as wills and trusts are designed to provide clear instructions for the distribution of money and property, reducing the need for legal disputes.

Some movies and television shows correctly explain that successfully contesting a will does require proving the case in court and that it may not always be easy. What they often do not portray is that a will contest gets complicated because anyone with legal standing can challenge a will, including

• named beneficiaries;
• previous beneficiaries who were disinherited; and
• individuals who are considered heirs or next-of-kin under state intestacy laws—a spouse, child, grandchild, or sibling—who may not have been named in the will.

A successful will contest can invalidate the document. If a will is found to be invalid, the deceased person’s money and property will have to be distributed according to a previous will or state intestacy laws, neither of which will likely reflect the decedent’s intent. 

Immediate Distribution of Inheritance

In movies and on television, beneficiaries often receive their inheritances immediately after the death of a loved one. Inheritance distribution is portrayed as a seamless and quick process, allowing family members to access their newfound wealth right away.

The distribution of money and property according to a will is a legal process that involves probate: the court-supervised process of validating the will, paying off debts, and distributing money and property. This process can be lengthy, especially if there are disputes or complications. Beneficiaries may need to wait for the resolution of legal matters before receiving their inheritances. Estate taxes and debts must be paid first, which can cause further delay. In some cases, it may take months or years for an executor to be appointed, and there may be a minimum length of time that a probate estate must be open before inheritances can be distributed.

Real-Life Probate and Trust Administration

Real-life estate administration is less dramatic and more procedural than movies and television shows would have you believe. Seeking the guidance of an experienced estate planner can help you navigate the complexities of creating a proper estate plan to ensure that your wishes are carried out efficiently and effectively during probate or trust administration.

Estate planning attorneys help you make decisions based on

• your family situation and dynamics;
• the age and circumstances of your children, grandchildren, and other loved ones;
• how much wealth you have accumulated;
• the type of accounts or property you have;
• potential estate tax liability;
• your issues and concerns;
• your goals and desires; and
• whether you need to protect financial resources from your beneficiary’s creditors, bankruptcy, lawsuits, judgments, or troublesome relatives.  

Although television and movies are entertaining with their conflicts and cliffhangers, your estate plan should not be as entertaining. We can help you craft a customized estate plan that addresses your goals and wishes and provides an uneventful administration at your death. To learn more, give us a call.

A loved one’s passing is challenging on many different levels. In addition to the emotional difficulty of processing someone’s death, there are also the many tasks that must be dealt with, such as going through their various accounts and taking the necessary steps to cancel them or transfer ownership. 

Most people subscribe to multiple digital subscription services in addition to utilities, insurance, memberships, medical prescriptions, and other recurring payment programs. Settling these accounts helps avoid unnecessary charges and protect against identity theft and fraud. If the duty to handle outstanding accounts falls to you, you will first want to identify which accounts your loved one held and then figure out what to do with them. 

Deciding Whether to Cancel or Keep an Account

The first step is to figure out what accounts the deceased had by looking through their mail, email, or phone notifications. You may get lucky, as the deceased may have compiled a list as part of their estate plan. Once you have identified what accounts were in the deceased’s name, you can move on to the next step of deciding whether to cancel or keep them. 

Subscription Services

Subscription services are low-hanging fruit. Unless the service has a shared family plan, it can most likely be canceled. 

The typical American has five subscription services, and one in five has eight or more subscription services.¹ In addition to digital media services like Netflix, Hulu, Disney+, YouTube TV, and Apple TV, do not forget delivery services like Amazon Prime, Walmart+, and subscription box services. 

Also, keep in mind that Amazon Prime and Walmart+ members may have recurring monthly deliveries for certain items. And then there are digital subscriptions to newspapers and magazines, which may be linked to a Kindle account. Kindle Unlimited, which has 150 million subscribers, is another account that may need to be canceled. 

Patronage Accounts

Independent content creators are a large contingent of the digital media ecosystem, and a growing number of services provide opportunities for “digital patronage,” or delivering direct, recurring support to online content creators. 

Platforms that enable digital patronage include Patreon, Twitch, Substack, YouTube, and Facebook. Outside of these platforms, creators may enable patronage, such as subscriber-only content, through their own website. 

You can check bank or credit card statements to find out if a loved one has any subscriptions to their favorite content creators. Like subscription services, patronage accounts are prime cancellation targets. 

Utilities

Utilities may need to be temporarily kept in the deceased’s name, transferred to another account holder, or canceled, depending on the circumstances. 

• Keeping utilities in the name of the deceased should be okay on a short-term basis while the estate is resolved, but you might want to check with the utility company. 
• If utilities were in the deceased’s name and they lived with somebody else, the accounts should be transferred to that individual. The same goes for a family member who plans to take over occupancy or ownership. For example, the house may have been gifted to a beneficiary in the will or established as family property with joint sibling ownership. 
• Utility accounts can be canceled following estate administration, but consider the timing if the house is being put on the market. Typically, in the event of a sale, utilities are kept on until after closing. 
• Although not technically a utility, a home security system deserves the same consideration as utilities. Security is particularly important for a home that is left vacant for extended periods while settling the estate. 
• Do not deactivate a loved one’s cell phone service until you have retrieved all of the information you need from the phone. Again, this can include notifications about bills and other services that need to be canceled or transferred. 

Miscellaneous Accounts  

Many accounts fit into the main buckets listed above, but it may take a thorough sleuthing effort to uncover every account linked to a loved one’s name. Here are some more examples of accounts you may need to resolve, either by canceling or, where possible, transferring account ownership: 

• Memberships to gyms, sports clubs, cultural institutions, unions, homeowners associations, Costco, and other fee-based groups or services
• Physical newspapers, newsletters, and magazines
• Social media and dating sites
• Financial advisor, personal trainer, accountant, life coach, etc. 
• Pet-related dues and subscriptions
• Meal delivery services
• Music subscriptions (Pandora, Spotify, Apple Music, Amazon Music, Sirius XM, etc.)

Probate, Estate Administration, and Executor Legal Assistance 

As you deal with the emotional challenges of a death in the family, you may be simultaneously navigating legal issues related to losing someone close to you. Being named an estate administrator or executor comes with a lot of responsibility. Our estate planning attorneys offer services tailored to executors that help them do right by their loved one—and the law. For answers to your estate administration questions, reach out to our team. 

Footnote

1. John Glenday, US Subscription Fatigue Is Real, with Consumers Managing an Average of 5 Accounts, The Drum (Nov. 16, 2022), https://www.thedrum.com/news/2022/11/16/us-subscription-fatigue-real-with-consumers-managing-average-5-accounts.

A spouse’s death creates a difficult and demanding time for the surviving partner. As much as you might want space and time alone to process your grief, you may have certain responsibilities related to settling your deceased spouse’s affairs, including paying off their debt. 

Most Americans have some type of debt. The obligation to pay debts does not necessarily go away when a person dies. While most debts are paid by the deceased’s estate (money and property owned by the decedent at their death) and do not transfer to a surviving spouse or other beneficiaries, in some cases you may be responsible for paying off your deceased spouse’s creditor claims.

If the legal duty to pay off a spouse’s debt does fall to you, it has implications for your own finances, so you will want to be clear on what the laws are where you live. If debt collectors contact you, know that you have rights as well. You should discuss questions about your debt payment obligations and rights with an attorney who specializes in estate planning and administration. 

Debtor Nation

About 80 percent of Americans have some type of debt, from credit-card debt and student loans to mortgage debt and personal loans.¹ An estimated 13 percent of Americans with debt expect that they will never pay it off during their lifetime. 

The average American has more than $90,000 in debt.² Collectively, Americans owe $14 trillion. More than half of this amount is mortgage debt, which is not surprising, since a house is the largest purchase most Americans ever make. What may be surprising, however, is that people forty-five to fifty-four years old hold the greatest average debt. While Gen Xers have the largest average debt balance ($135,000), Baby Boomers, many of whom are at or near retirement age, hold the next-largest debt load (nearly $100,000). Members of the Silent Generation (age seventy-five and over) owe about half as much as the average Millennial, but people in the highest age category still have significant debt, owing an average of more than $40,000. 

In short, debt does not discriminate by age. Even as people near the end of life, they can struggle financially. And when a debtor passes away, questions arise for their surviving loved ones. 

Probate and Debt Payment

Before we delve into a surviving spouse’s possible debt obligations, a brief primer on how debt is handled after a death is useful. 

The legal process for distributing a person’s property after they die is called probate. During probate, estate assets (everything a person owned at the time of their death) are distributed according to the person’s will, if they had one, or to their legal heirs. But first, debts are paid. The remaining assets are then passed on to heirs or beneficiaries. 

Assets such as life insurance policies and other accounts with a named beneficiary, assets in trust, and jointly owned property are not subject to probate. In addition, each state has different rules for prioritizing the order in which debts must be paid. Usually, the estate pays funeral expenses and estate administration costs (e.g., court fees and attorney fees) first, followed by taxes and then other forms of debt, such as loans and credit card balances. 

This explanation of how probate works is, of course, extremely simplified. An attorney specializing in estate planning and administration can fill you in on the complete process and what is expected of you if you are named the estate administrator (the person in charge of overseeing the probate process and working with the probate court). 

When You May Be Liable for a Spouse’s Debts

An estate that lacks the money to pay off its liabilities is known as an insolvent estate. There may be nothing a creditor can legally do to collect a debt from an insolvent estate, and the debt could just go unpaid. But, in the following situations, you may be on the hook for your deceased spouse’s debts: 

• You cosigned for a loan.
• You are a joint account holder on a credit card (not merely a spouse who is an authorized user).
• You live in a community property state that considers a couple’s assets and debts to be jointly owned by both spouses.

There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In Alaska, couples who sign a special agreement are considered to be living in a community property state. If you live in one of these states, the debts your spouse incurred during marriage are legally also your debts.  

As a result, if the estate is insolvent and cannot cover its debts, you may be personally liable for paying them, even if they were exclusively in your spouse’s name. Creditors can come after you for debts such as medical expenses and outstanding credit-card balances. They could even have the right to garnish your wages, put a lien on or seize your property, or take money from your bank account. 

Exceptions apply to the shared-debt rules of community property states. Generally, you are responsible only for debts that you took on as a member of a married couple. That is, any debt your spouse incurred before you were married is generally not yours unless you explicitly agreed to take it on. Also, you may not be responsible for a spouse’s debt if you were legally separated when they passed away. In addition, property that you received as a gift or inheritance is typically considered your separate property and may be protected from your spouse’s creditors. Check with an attorney specializing in estate planning and administration for guidance on specific community property rules in your state. 

Spousal Debts and Dealing with Debt Collectors

Unless you live in a community property state or are otherwise legally obligated to pay your deceased spouse’s debts, you should not have to worry about spousal debt. But debt collectors may contact you anyway. 

Creditors could attempt to collect the money they are owed from assets that pass to you outside probate. They might even try to sue you personally to collect the debt. Neither of these tactics will work, but simply ignoring a legal filing is a bad idea. You may need to hire an attorney to prove that you are not liable for your spouse’s debt. 

Debt collectors do have the right to contact a deceased person’s spouse to find out who is authorized to pay the estate’s debts, according to the Consumer Financial Protection Bureau.³ However, the bureau adds, they cannot represent that you are personally responsible for paying the debt unless you are legally obligated to do so. 

There are rules to debt collection under federal law. As a debtor’s surviving spouse, you have the right to tell a debt collector to stop contacting you. After you have made such a request in writing, they must end communications with you. However, they can still try to collect the debt from either you or the estate with an official filing. 

Any debt that you do not personally owe should not affect your credit score, but a debt collector could improperly report your spouse’s debts to a credit reporting agency under your name. Should that happen, contact the credit reporting company and file a dispute to get the erroneous information removed from your credit report. 

Talk to an Estate Administration Attorney about Dealing with Spousal Debt

After the loss of a spouse, the grieving process can be complicated by the probate process and lingering questions about debt and finances. Though you may not have to pay your spouse’s debt, you may have to serve as their personal representative, executor, or administrator and deal with creditors. To best honor your spouse’s legacy and protect your own rights, it helps to understand the laws around estate administration, unpaid bills, and creditors. 

Are you unsure of your rights and obligations regarding a spouse’s debts? An estate administration attorney can answer your questions and advise you on which steps to take next. Contact us to set up an appointment.

Footnotes

1. American Debt Statistics, Shift Credit Card Processing (Mar. 2021), https://shiftprocessing.com/american-debt/.
2. Megan DeMatteo, The average American has $90,460 in debt—here’s how much debt Americans have at every age, CNBC (Nov. 18, 2021), https://www.cnbc.com/select/average-american-debt-by-age/.
3. Am I responsible for my spouse’s debts after they die? Consumer Fin. Prot. Bureau (May 16, 2022), https://www.consumerfinance.gov/ask-cfpb/am-i-responsible-for-my-spouses-debts-after-they-die-en-1467/.