Estate planning can be difficult. Surprises in a will can complicate things further

Handling the estate of a deceased parent can be an emotional process for children already dealing with grief. 

Those emotions can become more complicated if the estate plan doesn’t unfold as expected — say, if there is an uneven split of assets among children or a previously unknown heir who comes forward to claim a share of the estate.

Feelings of pain and betrayal can be avoided by having discussions about your estate plan with your family before death; however, estate planning attorneys say these conversations are rare.

About two-thirds of Americans, 68%, say discussing end-of-life preparations with loved ones is important, but only 47% have done so, according to a 2022 Ethos survey of 1,000 adults. A 2024 report from online estate planning service Trust & Will found that 34% of millennials are unsure if their parents even have an estate plan. The site polled 1,000 adults.

If a client refuses to disclose information about their estate to their heirs, it can put an estate planner or financial advisor in the difficult position of doing so after that client’s death.

“I think a lot of lawyers are hesitant to point out the ramifications of some of these things,” said New Jersey-based estate planning attorney Martin Shenkman.

One estate surprise may be assets given to a person, pet or entity, such as a charity or alma mater, the family wasn’t expecting as a beneficiary, experts say. It’s also possible that a previously unknown heir steps forward, such as a half sibling the deceased’s children weren’t aware of. 

It’s unclear how common unexpected heirs are, but estate planning bombshells aren’t unusual. More than a third, 36%, of people with a will say there are surprises for their beneficiaries in that document, according to a 2023 LegalShield survey. The site polled 1,316 adults.

About 3% of wills in the U.S. are contested, according to a 2013 study published in the Nevada Law Journal.

In the case of a previously unknown heir coming forward, experts say the first consideration is the will. If the will is vague or unclear — say, if it designates an asset to be split “among my children” rather than naming individuals —  there could be disputes that could require court intervention, according to Mitch Mitchell, Trust & Will’s probate expert.

Probate laws vary by state, he said, but it’s rare for genetic testing to be required to prove that a previously unknown heir is related. Typically, half siblings don’t have to prove who they are more than any other child of the deceased.

“As for inheritance divided equally, while states may vary regarding how much of a share a half sibling is to receive, this variation generally only exists when a half sibling is inheriting through a sibling, not a common parent,” Mitchell said. “Generally, for inheritance through a common parent, half siblings receive the same inheritance in equal parts with all other siblings.”

When there is no will, a state’s intestacy laws will determine how the property is divided, experts say, typically favoring the closest relatives.

The inheritance process can be a messy one if someone is written out of the will or an inheritance is divided unequally — especially if the decedent doesn’t detail why they made such choices.

“There have been a zillion times when people have told me, ‘No, all the kids get along. They all understand what I’ve done,'” Shenkman said. “And they may believe that because the kids appear to get along. But as soon as the parents are gone, those emotions come out of the closet like a torrent, and no, they don’t always get along.”

Shenkman said attorneys should have open and honest discussions with clients and ask questions about motivations during the will-writing process. 

“When I’ve seen parents or family members disinherit somebody, it’s really a kick in the gut in most cases,” he said. 

Shenkman also encourages clients to have discussions with their children that are age appropriate, even if they don’t disclose dollar amounts. This can help explain the decision-making behind how an inheritance is split up and avoid any feelings of betrayal after a parent’s passing, he said.

Other things that can complicate the estate planning process are non-traditional family situations such as same-sex couples, gender transitions, assisted reproduction or surrogacies. Anything that can create ambiguity in how wills or trusts are interpreted requires creative solutions, experts say.

Shenkman recommends involving an objective third party, such as a trust protector or friend, in the estate planning process to provide impartial perspectives for when it’s time to read the will.

Many people avoid writing a will or creating a trust at all due to procrastination or superstition surrounding death, experts say. But reframing the estate planning process as leaving a positive legacy, rather than just distributing assets after death, can help clients take on a more compassionate long-term view.

“The first step to avoiding these kinds of hardships is do everything from a compassionate perspective, not from anger,” Shenkman said. “Don’t write a will from anger. Don’t write an estate plan from anger.”