Your thoughtfully constructed estate plan could be disrupted by a challenge from a relative or friend who is unhappy with his or her inheritance (or lack of one). Here are 13 effective strategies that you can use to reduce the likelihood of your estate plan being challenged.
#1. DON’T PROCRASTINATE
If you wait to create an estate plan until you are diagnosed with a cognitive disorder or a serious illness that requires you to take medication that could affect your memory or judgment, your estate plan will be more vulnerable to attack. Your relatives may challenge your estate plan based on diminished capacity or undue influence exerted on you by a caretaker.
Instead, it is better to create your estate plan when you are in good health and are thinking clearly. You can always update it later if circumstances change.
#2. WORK WITH AN EXPERIENCED ESTATE PLANNING LAWYER
Now is not the time for a do-it-yourself solution. An experienced estate planning lawyer can ensure that your will and other estate planning documents are properly executed as required by state law.
Your will should be signed by you and two witnesses. They may need to watch you and each other sign. Your signature on your durable power of attorney, health care power of attorney, and living will should be witnessed by two witnesses or a notary.
Certain individuals should not serve as witnesses. Your will should not be witnessed by a beneficiary. Your health care power of attorney and living will should not be witnessed by relatives, beneficiaries, or your health care providers.
Your lawyer can take extra steps to create safeguards and clear language to avoid challenges. Additionally, your lawyer can ensure that you legally revoke any previous wills if you make a new one or make it clear that you are supplementing a will with a codicil.
#3. PROVE YOUR CAPACITY AHEAD OF TIME
If you expect a challenge to your will or another part of your estate plan, be sure that you and your lawyer document your mental capacity at the time you sign your estate planning documents. There are several ways your lawyer may be able to do this, such as testing your competency by asking a series of questions or having you medically evaluated. Your primary physician or a specialist can prepare a report that details your current mental capacity and your ability to understand the terms of your estate plan.
If you have been diagnosed with a medical condition that affects your cognitive ability or you are elderly, you may still have the necessary capacity to sign a will or make other estate planning arrangements since the question of capacity is time-sensitive. The relevant time of determining capacity is when you sign the document. If your medical condition causes periods of mental incapacity, so long as you sign when you are lucid, the document should be valid.
You may also want to video record the signing of your will as further proof that you understood what you were signing and signed voluntarily free from undue influence.
#4. USE A SELF-PROVING AFFIDAVIT
Some states allow witnesses to sign a self-proving affidavit that states that they saw you sign your will and that, at the time, you seemed to have the capacity to sign it. This document can provide further evidence that you had the necessary mental capacity to sign your will. Witnesses also have the added benefit of not having to repeat this information in open court when your will is probated.
#5. AVOID THE APPEARANCE OF UNDUE INFLUENCE
Undue influence generally means that a beneficiary has pressured or persuaded the testator to make a will to the extent that the testator’s independent decision-making ability has been overpowered. As a result, the testator makes a will favoring the beneficiary that he or she would not otherwise have made.
If you think that your family may argue that another person had such control and influence over you, you must establish ahead of time that this is not the case.
Make sure that anyone who stands to benefit from your will or other estate plan arrangement is not present or otherwise involved with the creation of your estate plan. These people should not accompany you to the attorney’s office, make your appointment with an estate planning lawyer, or talk to your lawyer. These steps can help establish that you are making the estate plan according to your wishes and not because of someone else’s influence.
#6. USE A REVOCABLE LIVING TRUST
Trusts can be more difficult to contest than wills because the law on challenging trusts is sometimes less clear and less well-developed than the law on contesting wills. Also, having set up your trust considerably before your death and managed your assets is strong evidence that you were competent.
#7. INCLUDE A NO-CONTEST CLAUSE
A very effective method of avoiding challenges to your estate plan is to include a no-contest clause in your will. This is a provision that states that if someone challenges your will, they will not receive the property you left them. However, the person who may challenge your will has to have something important enough to lose so that he or she will not take the risk of losing this property if he or she challenges it. This option will not work for someone you want to disinherit completely because he or she was already going to receive nothing due to the language in your will.
This option may not be effective in all jurisdictions. Some states – like Florida – will not enforce no-contest clauses. Other states have exceptions for when these clauses will not be enforced. Be sure you check with an estate planning lawyer in your state before adding a no-contest clause.
#8. TALK TO YOUR FAMILY
Many challenges to estate plans arise out of confusion between family members. A parent may have informed an adult child of an expected inheritance and then the will says something completely different. Children who receive different shares may think that another child influenced the parent to make things unequal. A previously unknown child may appear claiming a share of the estate.
To avoid these potential problems, talk to your family and explain the arrangements you have made and why. Some people are hesitant to discuss their estate plans with family because they find the subject depressing or fraught with conflict. However, avoiding this discussion only postpones the conflict among family members until after your death when only your estate planning documents can speak for you. When you explain your intentions to your family members in person, they are more likely to accept that your estate plan truly reflects your intentions and they will be less likely to challenge it.
Additionally, you may need to include specific language in your will or other es
tate planning documents to ensure your intentions are clear. For example, if you want to disinherit a child, you may need to explicitly state so. Simply not mentioning him or her as a beneficiary will probably not be enough to eliminate any legal right to an inheritance.
Sometimes, loved ones fight over family heirlooms and items of sentimental value. To prevent such squabbles, you may want to provide a memorandum or letter that lists these items, the person you would like to have each item, and the reason why you chose this person.
#9. PURCHASE LIFE INSURANCE
Your dependents may be entitled to reasonable support from your estate after your passing. To ensure that you can meet this standard, consider purchasing life insurance for their benefit that is enough to support them until they reach the age of majority (18 in most states). A term life insurance policy may be a small price to pay each month to avoid a costly will contest down the line.
#10. SUBMIT YOUR WILL TO PROBATE WHILE YOU’RE ALIVE
A few states allow you to submit your will for to court for authentication while you are alive. This preemptive strategy allows you to have a judge declare your will valid now so that you don’t have to worry about any potential challenges later.
This process is similar to probating your will after your death. You can bring in witnesses to confirm your mental capacity, but you can also express your wishes yourself. Similar procedures are available to validate a trust.
#11. PLACE YOUR WILL IN A SAFE PLACE AND LET SOMEONE TRUSTED KNOW
Don’t go through the time and expense of creating your estate plan and then make it impossible for anyone to find your will. Courts generally require the original will – not a copy – so you need to leave clear instructions to a trusted person about the location of your will. Also, avoid placing it in a safe deposit box since your loved ones may not even know of its existence or may have to take additional legal steps to open it.
#12. KEEP YOUR PLAN UP TO DATE
An estate plan is meant to be a living document that changes over time. You might want or need to make changes to your estate plan when:
• You acquire additional property.
• You want to change a fiduciary, like a trustee, executor or agent.
• Your health changes.
• You have more children.
• You get married.
• You get divorced.
• You become estranged from a beneficiary.
• You want to change a beneficiary.
• A beneficiary or fiduciary has died or became disabled.
These circumstances may impact your wishes and the provisions of your estate plan. Make a follow-up appointment with your estate planning lawyer every few years or after any major life event to review your plan and make any necessary changes. If you fail to do so, there may be unintended consequences, such as:
• A person you intended to leave a gift to gets nothing.
• An heir has a claim or a right to an inheritance you didn’t want him or her to have.
• The shares of beneficiaries are not what you intended them to be.
• Property you intended for one person goes to someone else.
• A beneficiary has a claim for the value of property you sold when there is no substitute gift.
When you make regular changes to your estate plan, this implies that you have taken the necessary time to review and amend your plan. Your plan is more likely to reflect your current wishes and your beneficiaries may be less likely to challenge it.
#13. DESTROY OLD WILLS OR KEEP A PREVIOUS WILL AS WILL CONTEST INSURANCE
Whether you should destroy previous wills depends on your situation. When you work with an experienced estate planning lawyer, he or she will make sure that your new will is dated and includes language that revokes any prior wills. However, an earlier will does not become worthless just because a new will has been executed that revokes it. If the latest will is successfully challenged, the next most recent will can become operative again.
If the previous will benefits substantially the same beneficiaries as the current will, then you should consider keeping the previous will as “will contest insurance.” An heir that is left out of both wills would need to set aside both of them to accomplish anything. On the other hand, if you would prefer no will to your earlier will, you may wish to destroy the prior one to keep unscrupulous beneficiaries from concealing the new will.
State law dictates the action necessary to destroy an old will, which usually includes taking any of the following actions against the will:
• Tearing it.
• Burning it.
• “Obliterating” it.