LEGAL TIPS: Preventing a will contest

This is the third in a series of legal tips – When you write a will, you have control over how your assets will be distributed after your death. However, if someone in your family disputes your will, a probate court judge could end up deciding who gets your property.

Emotions run high when someone dies. If family members aren’t content with what they’ve received, or don’t believe your wishes are being interpreted properly, they may contest your will. Will contests can drag out for months or years, preventing your rightful and intended beneficiaries from getting the assets you wanted them to receive.

As part of creating an estate plan, look for ways to reduce the possibility that someone could challenge your wishes. Here are some steps you can take to ward off a will contest after your death:

  1. Start early. Make your estate plan while you are of sound mind. If you wait until your health is failing, or your mind is impacted by an accident or other reason, your will becomes vulnerable to claims that you lacked sufficient mental capacity to draft it.
  2. Prove competency. When you write your will, you can ask a physician and/or your attorney to certify that you are mentally competent. A written report by an expert in the area of determining competence would be vital. Make sure the report is drafted somewhat close in time to the execution of the estate plan. A video record at the time you sign the will can also help demonstrate you acted with a clear head, of your own free will, and without outside interference.
  3. Get qualified legal advice. There are do-it-yourself books and online tools available for writing your will. But using an estate planning attorney is the best way to ensure it is properly executed and valid. If you do choose the DIY route you do so at your own risk. If, after you die, there’s a question about the Will or your capacity, don’t count on Legal Zoom to be there to support the validity of the documents!
  4. Consider trusts. There are a variety of trusts that direct how your assets are managed, held and distributed to your heirs or beneficiaries. With a trust, you generally can avoid probate and increase control over how your trust is administered. Your heirs will receive their inheritance more quickly and privately, with potentially fewer costs to the estate. Trusts are becoming very popular and it’s important to seek the guidance of an expert with experience.
  5. Write your will without interference. Avoid complaints that someone exerted undue influence over you when you wrote or executed your will. To help avoid such contests, never have your beneficiaries sign as witnesses and don’t include them in meetings with your attorney.
  6. Share your intentions. Consider talking to your family about the intentions in your will. Let your heirs know why you’ve designed it the way you have, or write an explanatory letter to accompany your will. Generally, what you put in the letter will not have a legal effect on your will, but it can help family members accept your choices.
  7. Include a no-contest clause. A no-contest clause stipulates that anyone who contests the will, and then loses that contest in court, is disinherited from what they would have otherwise received. No-contest clauses aren’t enforceable in all states, and they’re only effective if you’re leaving your heirs enough value that they wouldn’t want to risk the challenge. Once your will is complete, don’t just file it away. Sit down with an attorney regularly to make updates that reflect your current situation. Changes such as moving, having grandchildren, or losing a loved one can impact your plan.
  8. Moving. Let’s say you sign a will in Connecticut but retire to sunny Florida. There’s no reason to change the will merely because you are now a resident of Florida. Conversely, a validly executed will signed while a resident of another state would be valid if you died a resident of Connecticut.  However, it’s always smart to have your estate plan reviewed by an attorney of your domiciliary state in order to ensure it reflect your wishes and comports with the laws of your new home state.

If you need more legal advice, contact:

Stephen L. Mangan
35 Pearl Street
Suite 301
New Britain, CT

Or visit his member page here

For the previous legal tips: