If you have considered everything carefully, have your will just the way you want it, and keep it up to date, can you be sure everything is done according to your wishes after you die? Not really, but there are two additional ways to improve your chances
As we’ve seen above, the primary way is to do all that is necessary to assure your will is valid
and prevent problems with the probate process.
Although contesting a will is a difficult process that is rarely successful, you may need to take further steps, other than validating your will, to prevent someone from successfully contesting your will.
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.
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?
- Creditors can challenge your will if there is proof they were not paid in full from your estate.
- Your heirs may challenge your will if they believe they were unjustly left out or got a disproportionate share in your will.
- Others may challenge if they were removed from your will but still feel entitled to what you had previously left them.
However, 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.
However, there are many technical errors that can be exploited to justify a challenge to your will. If you go to the “Making sure your will is valid” section you can review all of the details necessary to make sure you got it right.
- A mistake or omission of any of those could invalidate parts or all of your will and leave it open to being challenged.
- 27 states allow holographic wills, which are handwritten and signed by you, but don’t need to be witnessed.
- They are the easiest wills to challenge since the court has to be absolutely convinced that entire will is in your handwriting and you created it to serve as your will.
- Having no witnesses to verify this compounds the problem.
- Executing your will in a state different from the one it was created in does not invalidate your will.
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 another common reason used by heirs and beneficiaries to justify a challenge.
Concern of the heirs and beneficiaries that:
Concerns that you were under:
Other reasons beneficiaries or others may want to contest your will may include:
- discovering a more recent valid will:
- occasionally, due to lack of communication, an executor may not be aware of your updated will and execute an older one
- once a more recent will is found, it displaces the older one
- your children are too competitive and want to “take it to court” or they have very different economic status. Try this quiz from Everplans: Will Your Kids Fight Over Your Estate?
- making a gift contingent on some goal, such as getting off drugs or finishing college
- although creating a discretionary trust, which leaves the decision to the trustee, may be the best way to avoid disputes, it increases the chance of a challenge
- leaving money to beneficiaries with mental illness, without creating a “special needs trust”
- another beneficiary gets an “advanced inheritance” for current financial reasons, but still gets an equal share after your death
- leaving out step children, who might feel entitled if you had a blended family
What Happens if the Challenge is Successful?
If your will is successfully challenged it can be completely or partially invalidated, but not changed.
Occasionally a partial invalidation can be reinstated with a prior provision from a previous valid will.
If the entire will is voided or no prior provisions can be found, it’s in the court’s hands.
They 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, 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 expensive option is for you to have a professional look over your completed will after you are done.
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.
Assure that your Testamentary Capacity is not questioned.
Assure there are no claims of undue influence.
Have your will notarized
While this is not a necessary step, it adds an additional witness, who is certified to do just this, to strengthen any claims in the will
There are also a few 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.
- Leaving specific instructions about your wishes for real property, especially real estate and businesses, which may prevent beneficiaries from fighting about what was done with those assets. For example, it may prevent a sister from getting upset if her brother had to sell the vacation home if you specified that in your will.
- Establish a “discretionary trust,” wherein a Trustee can decide on the distribution, therefore taking all the heat and avoiding direct conflicts among beneficiaries.
- 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, while just omitting them invites a challenge.
- Update your will and codicils on a regular basis, about every 5 years, and as needed.
- When giving a gift while you are alive, remember that it can create a lot of 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 a gift above and beyond the ultimate inheritance, you should have agreement from all parties prior to being part of your will.
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