For most people, one of the primary reasons why they execute a Last Will and Testament is to ensure that their estate assets are distributed according to their wishes after they are gone. If that is one of the reasons why you have a Will in place, you certainly don’t want someone to challenge that Will after your death. Although there is no sure fire way to prevent a Will contest, a Grand Forks wills and trusts attorney offers some suggestions that will help decrease the odds of a challenge to your Will.
What Is a Will Contest?
After your death, your estate must pass through the legal process known as probate. Probate serves several important purposes, including the authentication of the decedent’s Last Will and Testament if one was executed prior to death. State laws govern most matter related to Wills, trusts, and estates, including probate procedures. In most states, however, an “interested” person may challenge the validity of the Will submitted for probate. An “interested person” is usually defined as a:
- A beneficiary under the current Will
- Legal heir of the estate
- Spouse
- A beneficiary under a previous Will
- Creditor
A contestant cannot challenge a Will simply because he/she is unhappy with the inheritance left to him/her under the terms of the Will. Challenging a Will requires the contestant to allege, and eventually prove to be successful, grounds on which the Will can be proven to be invalid. Common grounds that you should be aware of – and plan against – are lack of testamentary capacity and undue influence.
Preventing a Will Contest – What You Can Do Now
If someone is determined to challenge your Will, there is nothing you can do to prevent that ahead of time; however, there are some things you can to that will discourage the idea of a will contest and/or decrease the odds of one being successful, such as:
- Rely on an experienced estate planning attorney to prepare your Last Will and Testament. In today’s “DIY” climate, it can be tempting to simply download a Will form you found on the internet in what you believe to be a move that saves time and money. Ultimately, however, DIY legal forms are so riddled with errors and omissions that they frequently lead to litigation when the form is actually used. Failing to work with an experienced attorney provides all kinds of ammunition for a would-be contestant to litigate the validity of your Will – and possibly even win that litigation.
- Have a complete physical and mental check-up shortly before creating and executing your Will. Once a potential litigant finds out that a licensed physician signed off on your sanity and capacity just prior to your execution of the Will it often discourages an attempt to invalidate the Will on grounds of lack of capacity at least.
- Include a “no-contest” clause in your Will. This is a provision that essentially disinherits someone if they do contest your Will. For a no-contest clause to work, you must leave the individual a gift of some value so that they have something to lose if they contest the Will.
- Execute your Will at your attorney’s office with disinterested witnesses present. You want your attorney and preferably his/her office staff to witness your execution of the Will. That way, they can all testify to your capacity and mental state at the exact moment you executed the Will if the need arises down the road.
- Keep your consultations private. Do not bring even well-meaning friends or family members to your consultations with you because that could become the basis for a claim of undue influence down the road. Always consult with your attorney in private, one on one.
- Create a Letter of Instruction. This is simply a letter that you create that explains decisions you made in your Will, or elsewhere in your estate plan. It can also provide instructions to loved ones about how you want things handled after you are gone. Nothing in a Letter of Instructions is legally binding, but it can be a very helpful addition to an estate plan nonetheless.
Contact a Grand Forks Wills and Trusts Attorney
Please join us for an upcoming FREE seminar. If you have additional questions or concerns about preventing a Will contest, contact a Grand Forks wills and trusts attorney at German Law by calling 701-738-0060 to schedule an appointment.
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