Avoiding challenges to your estate plan

Posted On: JUNE 2022

A primary goal of estate planning is to ensure that your wishes are carried out after you’re gone. So, it’s important to design your estate plan to withstand potential will contests or other challenges down the road. The most common grounds for contesting a will are undue influence or lack of testamentary capacity. Other grounds include fraud and invalid execution.

There are no guarantees that your plan will be implemented without challenge, but there are strategies you can use to minimize the possibility.

Dot every “I” and cross every “T”

The last thing you want is for someone to contest your will on grounds that it wasn’t executed properly. So be sure to follow applicable state law to the letter. Typically, that means signing your will in front of two witnesses and having your signature notarized. Be aware that the law varies from state to state, and an increasing number of states are permitting electronic wills.

Treat your heirs fairly

One of the most effective ways to avoid a challenge is to ensure that no one has anything to complain about. But making all your heirs happy is easier said than done.

For one thing, treating people equally won’t necessarily be perceived as fair. Suppose, for example, that you have a financially independent 30-year-old child from a previous marriage and a 20-year-old child from your current marriage. If you divide your wealth between them equally, the 20-year-old — who likely needs more financial help — may view your plan as unfair.

Demonstrate your competence

There are many techniques you can use to demonstrate your testamentary capacity and lack of undue influence. Examples include:

  • Have a medical practitioner conduct a mental examination or attest to your competence at or near the time you execute your will.
  • Choose witnesses you expect to be available and willing to attest to your testamentary capacity and freedom from undue influence years or even decades down the road.
  • Videotape the execution of your will. This provides an opportunity to explain the reasoning for any atypical aspects of your estate plan and will help refute claims of undue influence or lack of testamentary capacity. Be aware, however, that this technique can backfire if your discomfort with the recording process is mistaken for duress or confusion.

Consider a no contest clause

Most, states, but not all, permit the use of no contest clauses. In a nutshell, it will essentially disinherit any beneficiary who challenges your will or trust.

For this strategy to be effective, you must leave heirs an inheritance that’s large enough so that forfeiting it would be a disincentive to bringing a challenge. An heir who receives nothing has nothing to lose by challenging your plan.

Use a living trust

By avoiding probate, a revocable living trust can discourage heirs from challenging your estate plan. That’s because without the court hearing afforded by probate, they would have to file a lawsuit to challenge your plan.

Avoid surprises

If your estate plan does anything unusual, it’s critical to communicate the reasons to your family. For example, if you’re leaving the bulk of your wealth to charity or disinheriting a family member, explaining your motives to your heirs can go a long way toward avoiding misunderstandings or disputes. They may not like it, but it’ll be more difficult for them to contest your will on grounds of undue influence or lack of testamentary capacity if your reasoning is well documented.

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