Preventing a trust or will contest
Dear Clients and Friends,
When you write a testamentary document (a trust or a will), you have control over how your assets will be distributed after your death. However, if someone in your family disputes your testamentary document an anonymous probate court judge could end up with the final say over who gets your property.
Emotions run high when someone dies. If family members aren’t content with what they’ve received, or don’t believe your wishes are being interpreted properly, they may contest your will. Will contests can drag out for years, preventing your heirs from getting the assets you wanted them to receive.
As part of creating an estate plan, look for ways to reduce the possibility that someone could challenge your wishes. Here are some steps you can take to ward off a testamentary document contest after your death:
1. Start early. Make your estate plan while you are of sound mind. If you wait until your health is failing, or your mind is impacted by an accident, your will becomes vulnerable to claims that you lacked sufficient mental capacity to draft it.
2. Prove competency. When you write your testamentary document you can ask a physician and/or your attorney to certify that you are mentally competent. A video record at the time you sign the will can also help demonstrate you acted with a clear head, of your own free will.
3. Get qualified legal advice. There are do-it-yourself books and online tools available for writing your will. But using an estate planning attorney is the best way to ensure it is properly executed and valid.
4. Consider trusts first. There are a variety of trusts that direct how your assets are managed, held and distributed to your heirs. With a trust, you generally can avoid probate and increase control over how your estate is settled. Your heirs will receive their inheritance more quickly and privately, with potentially fewer costs to the estate.
5. Write your testamentary document without interference. Avoid complaints that someone exerted undue influence over you when you wrote your will. To help avoid such contests, don’t have your beneficiaries sign as witnesses and don’t include them in meetings with your attorney.
6. Share your intentions. Consider talking to your family about the intentions in your will. Let your heirs know why you’ve designed it the way you have, or write an explanatory letter to accompany your testamentary document. Generally, what you put in the letter will not have a legal effect on your will, but it can help family members accept your choices.
7. Include a no-contest clause. A no-contest clause stipulates that anyone who contests the will, and then loses that contest in court, is disinherited from what they would have otherwise received. No-contest clauses are only effective if you’re leaving your heirs enough value that they wouldn’t want to risk the challenge.
Once your will is complete, don’t just file it away. Sit down with an attorney regularly to make updates that reflect your current situation. Changes such as moving, having grandchildren, or losing a loved one can impact your plan.
As a former IRS attorney specially assigned to the estate and gift tax division along with my 40+ years of experience working in this area we can answer your questions and implement your wishes. Add to this that we continue to offer a free phone evaluation for all new matters and we submit that it is good idea to check in with us to see if we can be of help.