Your estate plan is your opportunity to put down in writing what you wish to happen to your estate assets after you are gone. For most people, one of the strongest motivations for having an estate plan in place is to ensure that those wishes are honored. Unfortunately, the law does allow certain people to challenge the Last Will and Testament that you execute. Because a Will contest is only initiated after your death, you cannot defend your Will if one is filed. There are, however, some things you can do to decrease the likelihood of a dispute. The Grand Forks estate planning attorneys at German Law | Wealth offer tips to help prevent estate disputes.
What Is Probate?
The estate you leave behind after your death will consist of everything you owned, or in which you had an ownership interest, at the time of your death. Ultimately, all those estate assets need to be transferred to the intended beneficiaries and/or legal heirs of the estate. Before that can happen, however, your estate must go through the legal process known as probate. During probate, your estate assets are identified, secured, and valued. Challenges to your Will also occur during probate.
When disputes erupt during the probate of an estate, it typically increases both the cost of probating the estate and the length of time required to conclude the probate process. Consequently, a dispute could mean a decrease in the value of the estate passed down to your loved ones and a much longer wait before they receive the assets that are passed down. To prevent such unwanted results, the following tips may help reduce the likelihood of a dispute during the probate of your estate:
- Work with an experienced estate planning attorney. It may seem like using fill-in-the-blank online estate planning forms is a good way to save money; however, in the long run, the DIY route dramatically increases the likelihood of litigation when it comes time to probate your estate. Working with an experienced estate planning attorney ensures that everything is done correctly and offers the best defense against disputes.
- Take the time to consider your choice of Executor. All too often the creator of the Will, known as the Testator, appoints a spouse, family member, or close friend as Executor without stopping to think if that person is really the best person for the job. The wrong Executor encourages challenges whereas the right Executor will deter those same challenges. Choose someone who will be able to handle the job while still grieving and who has some legal experience, if possible.
- Help your Executor prove your testamentary capacity. To contest a Will a contestant must allege (and ultimately prove to be successful) that the Will is legally invalid. The most common grounds on which a Will can be challenged are to claim that the Testator lacked testamentary capacity or to claim undue influence. To discourage these claims, have a full mental examination conducted by a geriatric psychiatrist or another qualified medical professional shortly before or after executing your Will. Meet with your estate planning lawyer, by yourself, to discuss your wishes. Execute your Will in front of your attorney and at least two disinterested witnesses. Finally, do not make last-minute changes to your Will.
- Consider including a no-contest clause in your Will. A no-contest clause effectively penalizes a beneficiary for contesting your Will. For a no-contest clause to be effective the beneficiary must be awarded something in your Will that he/she stands to lose by pursuing a Will contest.
- Use a Letter of Instruction to explain controversial decisions. You have an absolute right to distribute your estate in any way you see fit. If you completely disinherit a child or give your entire estate to charity, for example, you can almost count on challenges from loved ones as they have nothing to lose. If you know that the choices you made in your Will are likely to be unpopular or raise questions, explain those choices. You can do this prior to your death by sitting down and talking directly to your loved ones or you can use a Letter of Instruction explaining your reasons. This letter can be extremely beneficial if litigation is brought up after your death.
Contact a Grand Forks Estate Planning Attorney
Please join us for an upcoming FREE seminar. If you have additional questions about estate planning, contact a Grand Forks retirement planning attorney at German Law | Wealth by calling 701-738-0060 to schedule an appointment.