Challenges to Estate Planning: Protecting Your Will and Trust
Introduction:
Creating a will and establishing a trust are essential steps in safeguarding your assets and ensuring their distribution according to your wishes. However, it’s important to recognize that will and trust laws are subject to constant changes. To ensure that your documents can withstand any potential challenges, it is wise to consult with a will and trust lawyer. Even if your family members get along well, it doesn’t eliminate the possibility of a contest to your estate, especially if your assets are perceived as unequally distributed among your heirs.
Contesting a Will:
Challenging a will is not an easy or inexpensive process, but it is possible under certain circumstances. To contest a will, there must be a valid reason beyond simply disagreeing with how the distribution was made. Trust&Will highlights several justifications for challenging a will, including improper signing of the document, the existence of multiple documents, insufficient witnesses, or the will creator being under duress or mentally incompetent during the signing.
Making a Will Less Contestable:
To reduce the likelihood of a will contest, you can include a clause in your will that states anyone contesting it, without succeeding, will forfeit their inheritance rights. While this can deter challenges, it does not guarantee complete protection. Only individuals named in the will or those with a monetary interest in the assets can contest it. Additionally, each state has a statute of limitations for challenging a will, ranging from three months to two years.
Ensuring an Uncontested Will:
To further safeguard your will from contestation, it is advisable to discuss with your beneficiaries who should receive specific tangible assets. By openly communicating with your heirs and documenting their preferences in your will, you can minimize potential disputes. Avoiding generic statements such as equal distribution among heirs can prevent ambiguity and dissatisfaction.
Another strategy is to subtract gifts given to future beneficiaries from their inheritance. By including the value of the gift in your will and designating it as an advancement, you can ensure equal portions for each beneficiary.
Inserting a no-contest clause is one of the most effective ways to discourage challenges to your will. However, it is important to note that not all states recognize this clause. For example, Florida and Indiana do not acknowledge it. Furthermore, if you move to one of these states after writing your will, the clause will not be recognized. To prevent errors in your estate planning documents, ensure thoroughness and accuracy. In some cases, a no-contest clause may only apply to specific parts of the will and not the entire document.
Disinheriting Heirs:
If you intend to exclude someone from your will or trust, explicitly state it in the document. This clarity prevents the disinherited individual from assuming it was a mistake and potentially contesting the will. To further discourage challenges, consider leaving them a sufficient amount in your will to dissuade them from risking their inheritance.
Proving Your Mental Capacity:
One of the primary arguments in contesting a will or trust is challenging the mental capacity of the will creator or claiming undue influence. To counter these claims, it is advisable to undergo a medical evaluation that confirms your mental competence. Including this evaluation in your will or presenting it in court during a challenge can provide compelling evidence. Additionally, witnesses who sign the document can testify to your mental competence at the time of signing and confirm that you were not under any duress.
Periodically Reviewing Your Will:
Writing a will is not a one-time task. It is crucial to review it periodically to ensure its accuracy and relevance. Life circumstances, such as acquiring new assets, going through divorces, experiencing the loss of a spouse or child, or welcoming new family members, may necessitate updates to your will. The choice of an executor is also critical, as they will be responsible for carrying out your wishes. The more assets involved, the higher the likelihood of a challenge, so it is essential to destroy older copies of your will to prevent confusion.
Conclusion:
While creating a will and trust is vital, it is equally important to understand the potential challenges they may face. By consulting with a will and trust lawyer and implementing strategies to minimize contestation, you can protect your estate, ensure your assets are distributed as intended, and provide peace of mind for your beneficiaries. Periodic reviews and updates to your will help keep it current and relevant to your evolving circumstances.
