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Can you prevent a will contest?

On Behalf of | Jun 15, 2016 | Estate Planning |

If you’re approaching retirement age, chances are, you’re taking steps to secure your financial future and your legacy. Although not everyone enjoys making end-of-life plans, creating a will is an important part of protecting the assets you’ve worked a lifetime to earn

It is not always an easy task either. You may be struggling with the decision of the fairest way to leave your wealth to your children. Do you give them an outright distribution? Should each child receive the same amount?

You may have two sons, one that struggles and one that has a steady career. You may decide to leave a little more to the first son, because you know you don’t have to worry about the second. But will your kids understand your intent?

You may wonder whether you can ensure that your will is respected after you’re gone, and concerned that someone may contest the will.

What is a contested will?

A will contest occurs when an heir – or someone who believes he or she should have been an heir – files a formal objection regarding the contents of a will. This party, the contester, may argue that the will is invalid for some reason.

The most common contest claim is that the testator, the person who made the will, was not in his or her right mind at the time. The contester may claim that the testator was mentally incapacitated or that the testator wrote the will under duress or undue influence from another party.

For example, a brother who has been disinherited may claim that his sister pressured their mother to write the brother out of the will by threatening to put the mother in a nursing home if she didn’t comply.

Less common reasons for a contested will include claims of fraud, forgery, ambiguity or technical error. The validity of the entire will or individual sections may be contested.

Can you prevent a will contest?

Unfortunately, there is no sure-fire way to guarantee that no one will contest your will. However, there are actions you can take now that can minimize the likelihood of a contested will in the future.

One of these is talking to your heirs about your wishes and being upfront with them about what they will or will not inherit and why. Tell them in advance who will be the executor of the estate, and allow them to air any grievances then and there.

Explaining your rationale for your decisions can prevent discord from simmering under the surface, and your kids may surprise you with agreeable suggestions for division. Although it may be awkward, a frank conversation now can save the whole family a lot of heartache in the future.

Another method for preventing a contested will is a no-contest, or in terrorem clause, an addendum stating that if an heir contests the will, he or she forfeits his inheritance. However, these clauses are not bulletproof either.

How can an attorney help?

Estate and probate law are complex subjects. From providing for business takeover to preventing disclaimers, creating a will can bring up numerous topics you may not have encountered before. Ensuring that your will and entire state plan is executed property is an essential piece for limiting the exposure to a contest.

An experienced estate planning law firm can help you navigate property laws, draft legally binding documents, and prepare for a variety of eventualities you may not have considered.