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Ensuring Control of Outlived Assets

Jun 7, 2022

It is important to create an estate plan that can and will stand up against any challenges that come up after you die. This includes designing a will that can withstand contesting on the grounds of undue influence, lack of testamentary capacity, fraud or invalid execution.

Use a Professional

The internet is full of free do-it-yourself wills. But as the saying goes, you get what you pay for. One incorrect word can change the results intended, so it is important to use a professional when creating your will. Typically, you need to sign the will in front of two witnesses and have a notarized signature. Since the law varies from state to state, it is important to engage a local professional knowledgeable in the legislation of your state.

Make It Non-Contestable

An effective way to avoid a contest to your will is to plan and make sure there is nothing that can be challenged. Of course, writing a will that makes everyone happy is not an easy task.

Not all heirs will perceive the estate plan in the same way, meaning that even if you believe it to be fair, they may not see it that way. In some cases, it may be best to include the decision rationale in the will or have those discussions ahead of time. Engaging a professional trained in navigating family dynamics can be of tremendous value in these delicate situations.

Document Your Competence

To avoid your will being contested, specifically on the grounds of lack of testamentary capacity and undue influence, these examples may help you to document your competence:

  • A medical professional can perform a mental assessment or verify your competence during or around the time the will is executed.
  • Select witnesses you know who can be on hand to speak to your testamentary capacity and freedom from undue influence immediately and years or even decades in the future.
  • Create a video of the will being executed. This approach can give you the platform to explain your decision-making process and any unique aspects of your estate, as well as help refute claims of undue influence or lack of testamentary capacity. This technique can be risky. If you appear at all uncomfortable in the video due to an uneasiness with being on camera, it could be perceived that you are under pressure or disorientated.

Add a No-Contest Clause

Many states allow for the use of a no contest clause. These types of clauses essentially disinherit a beneficiary in the will if they contest or sue to challenge the terms of the will. For this clause to work in the way in which you intend, an heir’s inheritance must be large enough so that forfeiting it is a substantial deterrent to contesting the will. Be wary of an heir who receives nothing in your will, becuase they will not lose anything if they chose to challenge your plan.

Avoid Probate

In states where probate is difficult or expensive, revocable living trusts are regularly used to avoid probate. The revocable living trust may prevent an heir from contesting your estate plan. Without the court hearing afforded by probate, they would have to file a lawsuit to challenge your plan. Be sure all assets have been titled to the trust for this to be successful.

Have the Difficult Conversations Now

Does your estate plan contain anything unusual? It is crucial to discuss the reasoning with anyone named or not named in the will. If you are leaving much of your wealth to a charity or disinheriting a member of the family, providing an explanation of your intentions to heirs may help to avoid misunderstandings or disputes. It will be far more difficult to contest your will on grounds of undue influence or lack of testamentary capacity when there is sufficient documentation detailing your decision-making process.

No amount of planning or documenting can eliminate the possibility of a will contest. However, by implementing the above strategies, the risk can be reduced and your wishes are more likely to be honored.

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Lisa A. Herzer

Lisa Herzer is a Tax Director providing tax consulting services, compliance and research for more than 30 years.

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