If you have executed a Last Will and Testament, you are undoubtedly counting on the terms of that Will being followed during the probate of your estate. After all, a primary motivation for creating a Will is the ability to dictate how your estate assets will be distributed when you are gone. If someone successfully challenges your Will, however, your wishes will not be honored, and your estate will be distributed using the state’s intestate succession laws. A Grand Forks estate planning attorney at German Law discusses how careful estate planning can help prevent the possibility of a Will contest.
Preventing a Will Contest through Estate Planning
Although there is no way to guarantee that your Will will not be contested, there are some estate planning tools and strategies that can decrease that likelihood, including:
- Work with a professional. The DIY route can seem like a way to save time and money considering how easy it is to find DIY legal forms on the internet. Those forms, however, greatly increase the odds of a challenge, instead of preventing one. They are often riddled with errors and omissions. That, in turn, costs your loved ones more time and money. Moreover, consulting with an estate planning attorney when you create your Will provides a disinterested witness who spent considerable time with you around the time you executed your Will. This can be important if someone does contest your Will on the grounds that you lacked “testamentary capacity” at the time you executed the Will.
- Incorporate probate avoidance strategies into your estate plan. You can incorporate probate avoidance tools and strategies into your estate plan which, in turn, decrease the likelihood of a Will contest. Assets that are gifted in your Will must go through probate, subjecting them to the possibility of a Will contest. Non-probate assets though bypass probate altogether, meaning they cannot be the subject of a Will contest. Converting assets to non-probate assets when possible, therefore, makes sense. Common examples of non-probate assets include trust assets, certain types of jointly held property, and funds held in a “payable on death (POD)” account.
- Get a complete physical just before you execute your Will. Schedule a complete physical just prior to executing your Will to provide evidence of your state of mind, should it be needed down the road. Claiming that the Testator lacked “testamentary capacity” is a common basis for a Will contest. Having a complete physical done right before signing your Will creates an excellent record of your physical and mental capacity.
- Execute your Will in front of witnesses. Most attorneys have staff members witness Wills because they can usually be located later if needed to testify to the Testator’s state of mind and stated wishes at the time of execution.
- Create a Letter of Instruction. This is simply a letter that is written by you explaining anything not already covered elsewhere in your estate plan. You can use this option to explain why you made certain decisions that might be controversial or that are likely to cause a challenge.
- Include a “no contest” clause in your Will. A “no contest” clause is a provision in a Will that effectively disinherits anyone who tries to contest the Will; however, the beneficiary must be gifted something in the Will that he/she has to lose for a no contest clause to be effective. State laws vary regarding how they approach enforcement of a no contest clause.
Contact Grand Estate Planning Attorney
Please join us for an upcoming FREE seminar. If you have additional questions or concerns about how to prevent your Will from being contested, contact the Grand Forks estate planning attorneys at German Law by calling 701-738-0060 to schedule an appointment.
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