Twenty-five states are “categorically needy” or “income cap” states where Miller Trusts can be used to qualify for these benefits.
  • Miller Trusts may be called Medicaid Income Trusts, Income Diversion Trusts, Income Cap Trusts, Irrevocable Income Trusts, Income Trusts, d4B trusts, or Income Only Trusts.
  • Some states require that you be 65 years or older and/or blind or disabled to qualify for a Miller Trust.
  • Income cap states include Alabama, Alaska, Arizona, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Mississippi, Missouri, Nevada, New Jersey, New Mexico, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, and Wyoming. Although they are spend down states, Arkansas, Florida, Georgia, Iowa, Kentucky, and New Jersey also allow Miller Trusts.
  • If you put enough income into the trust to bring your remaining gross income below the limit, typically 300% of the Federal Benefit Rate$2,742 in 2023 — you will qualify for these benefits.
  • In 2023 this:
    • $914 per month for eligible individuals;
    • $1,371 for eligible couples; and
    • $458 for an essential person/caretaker.
  • In most cases you will only need to set up a Miller Trust if you need or will soon need this type of care, but they can be used to allow you qualify for Medicaid. You may consider a Miller Trust if you are just under the limit if it is possible your monthly income will occasionally exceed the limit.
  • The trust is not meant to protect/shelter assets in general, but to make more funds available to pay for medical and other allowed expenses by allowing you to qualify for Medicaid. In fact, any funds left in the trust after your death goes to your state’s Medicaid program.
The way a Miller Trust works is that any of your income put into the trust is not counted as income.
  • You can put any percentage of your earnings into the trust account that exceeds the limit.
    • The limit is based on your gross income, not your net income or take-home pay.
    • You should continue doing this every month, especially if you are currently receiving care.
  • Some income sources, such as your pension or social security check, must be put entirely into the account if you choose to add them.
  • Existing assets and other income such as your community spouse’s income, VA benefits, income tax rebates, and some annuity payments cannot be added.
In order to establish a Miller Trust a trust document is drawn up and a bank account for the trust must be opened.
  • You, your guardian, or power of attorney may set up the trust.
  • You cannot be a trustee, but they can be a relative such as an adult child or a professional. This trustee manages the trust according to the guidelines established by the trust.
Each state that allows Miller Trusts has different rules. These rules may include:
  • Requiring the funds to be directly deposited into the trust;
  • Having a minimum income requirement or limit on “excess” income before you can consider using a Miller Trust;
  • Restricting the monthly amount of income that can be deposited into a Miller Trust; and/or
  • Requiring all income to be deposited into the trust.
There are specific expenses that the trust funds can be used to pay.
  • You can pay yourself a monthly personal needs allowance (PNA). This amount varies by state and the long-term care setting.  This amount varies by state and the long-term care setting.
  • If you are married and your non-applicant spouse (community spouse, healthy spouse, or well spouse) has little to no income, you may pay them a monthly maintenance needs allowance. The figure varies by state and by circumstances, but the maximum payout in 2023 is $3,715.50 per month.
  • If you are in a nursing home or have HCBS services, any funds remaining after paying any needs allowance are applied to those expenses. If you do not, the funds can be used for other medical costs and care expenses.
Income and interest earned by the trust, if any, can accumulate and will not be counted as a resource. Aside from the restricted use of the funds, your state must be named as the beneficiary of the trust. If there are any remaining funds after your death, they will go to your state’s Medicaid program.

Contesting Your Will

Updated: January 18, 2024

If you have considered everything carefully, can you be sure everything is done according to your wishes after you die? Not always. Aside from your will being invalidated, another common reason your wishes are not carried out is if your will is successfully contested.

There are ways to improve your chances. Since there has to be a valid legal question about your will for a contest to be considered, the primary method to prevent challenges is to do all that is necessary to assure your will is valid and prevent problems with the probate process.

A will can only be contested during the probate process and requires that a beneficiary file a formal legal challenge against the validity of your will.

  • Contesting a will is a difficult, time-consuming, and expensive (at least $5,000-$10,000) process that is rarely successful.
  • There are many ways to significantly reduce the chance of anyone successfully contesting your will.
  • There are a few ways to discourage or prevent indiscriminate challenges to your will such as sharing your will with the beneficiaries and getting their input and blessing or adding a No-contest clause

Who Can Contest Your Will

The Probate Code states that only “interested persons,” usually family, can legally challenge your will, including any amendments/codicils. In order to be an “interested party” and be able to challenge a will, one needs to have proof that they fall into one of three categories.

  1. They are a beneficiary named in any version of your will. For example, any person, even those who are not family, or charity you removed from a subsequent will.
  2. They are an intestate heir who is not a beneficiary but who would have inherited or lost inheritance if the will was deemed invalid. See Dying without a Will – Laws of Intestate Succession.
  3. They are an unpaid creditor or any other person having a property right or claim against your estate.

Most people challenging your will must file during the probate process. Minors wanting to contest your will must wait until they reach the age of majority (typically age 18), however your will can be challenged on their behalf by an executor or court representative.

Why Would Your Will be Contested?

Most will contests are initiated by unhappy heirs due to being disinherited, lack of understanding about the process, anger at other beneficiaries (such as siblings), greed or envy, or contradictions between what you said and what the will says. Ultimately it comes down to these four reasons.

  1. Creditors can challenge your will if there is proof they were not paid in full from your estate. 
  2. Your heirs may challenge your will if they believe they were unjustly left out or got a disproportionate share in your will. 
  3. Others may challenge if they were removed from your will but still feel entitled to what you had previously left them.
  4. Your beneficiaries were concerned that you lacked the capacity to understand what was in your will or were under duress or undue influence when making it.

For any heirs or beneficiaries to successfully challenge your will, they need to prove there is a legal reason to invalidate it. Being hurt and angry will not get them a hearing if your will is entirely valid.

There are many technical errors that can be exploited to justify a challenge to your will. A mistake or omission of any detail could invalidate parts or all of your will and leave it open to being challenged.

  • The best way to avoid this is to have your will done by a professional and updated.
  • If you did it yourself you can go to the Making Sure Your Will is Valid section to review all of the details necessary to make sure you got it right. 

Holographic wills are the easiest wills to challenge.

  • Holographic wills are handwritten and signed by you, but don’t need to be witnessed.
  • This makes is difficult for the court to be absolutely convinced that the entire will is in your handwriting and you created it to serve as your will.

As long as your will is valid in the state it was created, executing your will in a different state does not invalidate it.

Although included in the “Making Sure Your Will is Valid” section, you may want to give special attention to these reasons for contesting your will.

Contention that you lack Testamentary Capacity is a common reason used by heirs and beneficiaries to justify a challenge.

  • By definition testamentary capacity means that, while executing your will, you:
    • Understand the nature, extent, and value of your property and how you are disposing of it;
    • Recognize your beneficiaries (natural objects), their needs, and of the generosity of your gifts (bounty); and/or
    • Are aware of how to distribute your assets to meet these needs.
  • To successfully show that you lack testamentary capacity they must prove you had a significant problem with your mental capacity (commonly called “sound mind”) when you signed your will due to senility, dementia, insanity, influence of a substance, or any other reason to affect your mental capacity.

Concern of the heirs and beneficiaries that:

  • You have been defrauded into signing your will, such as being told that you were signing some other document but signed the will instead; and/or
  • The will is a forgery.

Concerns that you were under:

  • Duress for any reason such as a threat, intimidation, or even pressure from a family member; and/or
  • Undue influence or manipulation from another person when you signed the will and lacked the free will to bargain. Many situations can raise this concern, such as a late marriage or a live-in caretaker who appears to have control over everything you own.

Other reasons beneficiaries or others may want to contest your will may include:

  • Discovering a more recent valid will;
    • An executor may not be aware of your updated will and execute an older one due to lack of communication.
    • Once a more recent will is found, it invalidates the older one(s).
  • Your children (or other beneficiaries) are competitive and want to “take it to court” or they have very different economic status; and don’t think your assets should be split equally
  • Making a gift contingent on some goal, such as getting off drugs or finishing college;
  • Leaving money to beneficiaries with mental illness without creating a special needs trust;
  • Another beneficiary getting an “advanced inheritance” for current financial reasons, but still getting an equal share after your death;
  • Leaving out step children, who may feel entitled if you had a blended family;
  • Your heirs are convinced someone married you for your money; and/or
  • You created a discretionary trust and left the distribution decision to the trustee — while this may be the best way to avoid disputes, it increases the chance of a challenge.

What Happens if the Challenge is Successful?

If your will is successfully challenged, it can be partially or completely invalidated, but not changed.

  • A completely invalidated will could be replaced by a previous valid will.
  • If a will is only partially invalidated, that part can be reinstated with a provision from a previous valid will or codicil.
  • If the entire will is voided or no prior provisions can be found, it’s in the court’s hands. The court will proceed as if your will or that provision never existed and distribute the property according to state laws as if no will had ever existed.

How Can You Prevent This?

The easiest and most effective (but most expensive) way to prevent legal issues that can result in your will being contested is to involve a professional in all of the steps in the process. A less costly option is for you to have a professional look over your completed do it yourself will after it is completed.

If you are determined to do it yourself, make sure you follow the step-by-step plans in the Doing it Yourself section. This is usually outlined in your will template or software, and carefully follow your state’s rules. Here is a list of the more important details to consider, as you go along, to make sure your will is valid.

Invalidate all your prior wills, including any addenda/codicils that may be affected.

    • You should state in your most recent will that you testify that this is your last will and testament, and that it invalidates any previous wills or codicils.
    • Although you are not required to destroy the older wills, it is the best way to assure that a previous or older will is not found to bring to probate court in support of a challenge.

Assure that your Testamentary Capacity is not questioned.

    • Remember that to sign a will you need to understand your assets, who your heirs and beneficiaries are, and the effect of the will will have on them. You do not need to prove that you are 100% free of cognitive impairment or mental issues.
    • You should include a statement that you are sound of mind. By signing your will, any witnesses also testify to this.
    • If you are worried that your mental capacity will be questioned, you should talk to your attorney who may advise you to videotape the signing or get medical documentation from your healthcare provider.

Assure there are no claims of undue influence.

    • Make sure no family members are directly involved or with you when you create and sign your will.
    • You should always state in your most recent will that you testify that you are not creating the will under duress or undue influence. By signing your will, any witnesses also testify to this.
    • Under some situations where the risk is high, a simple statement in your will may not be enough and you should talk to an attorney who can help you prepare evidence to attest to this.
    • Have your will notarized — While this is not a necessary step, it adds an additional witness who is certified to strengthen any claims in the will.

There are specific measures you can take that do not affect validity, but can still reduce the risk of a challenge.

  • Sharing your will with the beneficiaries and getting their input and blessing can significantly reduce the chance of a challenge.
  • Leave specific instructions about your wishes for property, especially real estate and businesses, which may prevent beneficiaries from fighting about what was done with those assets.
  • When leaving assets to a beneficiary with cognitive deficits or mental illness, create a “special needs trust” that describes in detail how the assets are to be used for their benefit. It also has the benefit of keeping them qualified for Medicaid and other government assistance plans while still receiving trust disbursements.
  • Try and foster equal relationships with each of your children. This may prevent the temptation to give more to your children with a better relationship with you. However, if your children recognize that one of them has done much more of your caregiving and agree to it, you may consider giving that person more.
  • It is very important to add a modern disinheritance clause for any heir you intentionally leave out of your will. Spelling out the reasons may reduce their risk of a challenge, but becomes a part of the public record..
  • Update your will and codicils on a regular basis, about every 3-5 years and/or as needed.
  • When giving a gift while you are alive, remember that it can create resentment, tension, and fighting if not done properly.
    • If you do consider it an advancement on inheritance, note the gift in Trust language in your will, including that it should be subtracted from their ultimate inheritance.
    • If intended as a gift above and beyond the ultimate inheritance, you should have agreement from all parties prior to being part of your will.

Add a Non-contest Clause

Also known as an in terrorem clause, it is a provision in your will stating that if anyone files a lawsuit to challenge what they have inherited in your will, they will receive nothing from your estate if they lose the challenge.

  • It typically reads something to the effect of: “Notwithstanding anything herein to the contrary, if any beneficiary contests the terms of this Will, including, without limitation, filing a contest of admission of this Will to probate under [applicable section of the state Probate Code], that beneficiary shall not be entitled to any property under the terms of this Will, and for all purposes of this Will, that beneficiary shall then be deemed to have predeceased me.”
  • Although meant to prevent casual challenges from dissatisfied beneficiaries, consequences can vary by state.
    • Some states allow challenges without losing inheritance if there is probable cause that is valid, such as errors in the will or evidence of undue influence when the will was created.
    • In most states a no-contest clause results in the beneficiaries being unable to make any challenges without losing inheritance, even if valid.
    • Florida and Indiana do not recognize no-contest clauses.
  • The clause does not prevent someone not mentioned in your current will, but included in a previous version of your will, from contesting it.

Other alternatives include:

  • Not preventing the ability to contest, but allowing them to keep their inheritance if they postpone the challenge for a specified time in the hope they will change their mind;
  • Putting a clause in the will requiring any disputes to be settled by an outside mediator; or
  • Making separate trusts that only the beneficiary will know the contents of.
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