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Bar Association of San Francisco Member Benefits: Publications

Estate Planning Lawyers: Tips for Pre-Empting Estate Litigation


By Jeffrey R. Lowe, Burns Loew

For better or for worse, estates and trusts litigation is one of the fastest-growing areas of law. The circumstances present when an estate plan is executed become especially important when reviewed in the light of a subsequent lawsuit, whether in the form of a will or trust contest or fiduciary litigation against the executor or trustee. Estate planning lawyers must therefore be conscious of the factors that contribute to post-mortem litigation, and of what actions they may take to minimize those factors. Purchase

So what can estate planners do to head off this litigation at the pass? A recent CLE, “Tales from the Dark Side: Tips for Pre-Empting Estate Litigation,” provides strategies for estate planning with an eye to avoiding estate litigation. Topics include potential “red flags,” the types of estate litigation that may arise, and various pre-death techniques to encourage post-mortem peace.

The first step in preventing estate litigation is to observe and recognize its root causes. Some of these root causes may include: (1) sibling rivalry – a unequal distribution (or perceived unequal distribution) of assets or even of affection among the testator’s children; (2) generational conflict – such as when children of a first marriage are disappointed that their parents’ wealth goes to second spouses or caretakers instead of to them; (3) demographics – the elderly population in California is growing twice as fast as the general population, leading to increased litigation concerning the elderly and their estates; (4) an increase in wealth and in the value of assets - throughout the Bay Area, significant wealth continues to be created, and the value of real estate, while not what it was a few years ago, still provides sufficient incentive to attack an estate plan and pursue settlement.

Other core concepts addressed include (1) the benefits of disclosure to beneficiaries and would-be beneficiaries, (2) the importance of creating an evidentiary record – including selection of witnesses, detailed note-taking, and, in some cases, obtaining a physician’s statement or neuropsychiatric evaluation. The presentation also addresses the legal standards to determine testamentary incapacity, undue influence, and elder abuse, and how those standards may affect estate planning strategies.


Jeffrey R. Loew is Certified as a Specialist in Estate Planning, Trust and Probate Law by the State Bar of California Board of Legal Specialization. His practice focuses on trust and estate litigation, probate and trust administration, estate planning, conservatorships, and civil litigation.

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