It’s a sad fact of life that money often brings out the worst in people—and that the biggest offenders tend to be family members. While no one likes to think about dying and loved ones carrying on without us, a little planning and communication can go a long way towards ensuring your final wishes are executed properly and peacefully.
A Last Will and Testament is a good starting point for estate planning, because it can clearly communicate the who, how, and when of your property distribution. More importantly, a valid Last Will and Testament is the only way to gift property to the beneficiaries you choose.
While an estimated 99% of wills are never challenged, there are four reasons that are legal cause for contesting a will:
- Invalid Execution – Each state has specific laws that dictate how a will must be signed. Lack of valid execution is the top reason for contesting a will and for finding a will to be invalid.
- Lack of “Testamentary Capacity” – The Testator failed to understand the value of his/her assets, who should inherit them, and the legal consequences of signing a will.
- Undue Influence – It’s possible to prove someone unduly pressured the Testator to sign a will that goes against his/her wishes.
- Fraud – For example, the Testator was tricked into signing the will.
All four reasons are difficult and costly to prove. However, regardless of the odds, there’s always a chance someone may contest your last wishes. To squelch that possibility, consider doing the following today:
The 8 Best Strategic Tips to Ensure Your Will Goes Your Way
- Include a No-Contest Clause – A no-contest clause says that if any heir challenges the will’s validity and loses, he/she will inherit nothing. Alternatively, it can provide that the challenger’s inheritance will be given to charity.
- Require Mediation or Arbitration – Prevent a rush to sue and encourage people to settle differences by stating in your will that any disagreement must first be addressed by mediation or arbitration.
- Appoint a Private or Corporate Fiduciary – Bolster your will by naming an impartial third party to oversee it and to protect all involved.
- Have a Family Meeting – Talking with your kids about who will be receiving what from the trust or estate can be a great way to “reveal all” upfront and prevent surprises.
- Obtain a Certificate of Independent Review – This is useful for bequeathing something to a non-family member, such as an unrelated caregiver. An attorney creates the Certificate after interviewing you to determine why you’re so appreciative of the individual and want him/her to receive a part of your estate.
- Keep Interested Parties Outside the Room when the Will is Written – If possible, meet alone with your attorney when writing your will. This will help deter accusations that anyone influenced your gifting decisions.
- Videotape Your Wishes – This can help convince heirs the will reflects your final wishes, serve as a personal way of communicating those wishes, and provide closure for survivors.
- Name Anyone You’re Cutting Out – While it’s legal to leave a child or spouse nothing, saying so prevents confusion regarding your intent. Specifically, provide the person(s) name and identity, and state that you’ve chosen not to leave them a bequest.
In short, the best strategy for avoiding a will contest is demonstrating clarity about your intent and your capacity to form that intent when your will was signed.
An experienced estate planning attorney can help you achieve both—and ensure your wishes are carried out exactly as desired.