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Four Estate Litigation Predictions For 2018


The (no longer that) new year is a good time to look ahead at what trends we may expect to see in the area of estate litigation in 2018. I have four predictions.

1. The Volume of Estate Litigation Will Continue to Increase

We are very likely to see an increase in the volume of estate litigation in 2018. There are many reasons for this. First, our society is increasingly aging, and with more elderly people passing away each year, the scope of potential estates and trusts that could give rise to litigation increases. Second, more money is being passed down via inheritance now than at any other time in human history, meaning that there’s much more to fight over than at any time in the past. Third, our society is becoming increasingly litigious in general, so it’s not surprising that this carries over to the estate litigation context. And fourth, new laws relating to trusts and estates are proliferating seemingly each year, opening up new areas of potential disputes. For example, within the past decade or so, we’ve seen a dramatic rise in the utilization of trust protectors, a proliferation of trust decanting statutes, as well as the expansion of the Uniform Trust Code (UTC) to nearly two-thirds of the states.

2. Arbitration Clauses in Wills and Trusts Will Increasingly Be the Subject of Litigation

More estate planning attorneys are inserting mandatory arbitration clauses in wills and trusts, whereby any beneficiaries who stand to take via the will or trust are deemed to have consented to binding arbitration to resolve any dispute. For a wide array of reasons that I’ll spell out in a future article, I generally think those provisions are counterproductive, as they can minimize the potential consequences of fiduciary misconduct, and can increase the financial and legal burdens on disadvantaged beneficiaries. 

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