Tax Lawyer Blog

A Blog written by the Tax Attorneys for Individuals and Businesses

What You Can Do To Minimize the Likelihood of Someone Contesting Your Will

In our first two posts in this series, we discussed who has legal standing to challenge a will and what grounds may form the basis of a will contest. In this third and final post on will contests, we will introduce a few actions you can take to minimize the chances of someone contesting your will.

Keep it private

By ensuring that the contents of your will and/or trust are not known to anyone but your attorney, no one will have knowledge of your previous estate plan’s provisions if you later change your mind. All you need to do is provide your family or named executor(s) with your attorney’s contact information and the location of your original estate planning documents. Note that there are certain circumstances where advance notice of certain estate plan provisions is warranted, such as the designation of the guardians of your dependents, particularly those of children with lifelong disabilities. In addition, if you decide to amend your will or trust to change beneficiaries or fiduciaries, consider having your attorney draft an entirely new will instead of a codicil, and a complete restatement of your trust instead of an amendment of a few provisions. This can generally be done at minimal additional expense but provides an important safeguard – any attempt after your death by an interested party to gain knowledge of your previous will (if not destroyed) or first iteration of your trust, would require bringing a legal action, usually at their own expense.

Create a revocable living trust

A revocable living trust that has been in operation for a long time is very difficult to contest – it is hard to prove that undue influence, duress or fraud have been taking place over the course of many years, or that the testator lacked testamentary capacity many years ago.

No contest clause

Every will and trust should include a “no contest clause,” a provision that states that anyone who contests your will – and their heirs – will receive nothing if they challenge your estate plan. This is generally a good preventative measure, but note that it will not deter someone who has been disinherited or who is particularly determined to receive more than what you have provided them.

Be fair

Regardless of their financial situation, most children expect to receive the same inheritance as their siblings. If yours is a blended family, take into consideration the relationships between your family members and don’t hesitate to discuss various options with your estate planning attorney.

Work with an experienced estate planning attorney

Qualified and responsible lawyers do not draft wills for individuals who lack capacity, and do not allow relatives or other parties to take part in consultations or signings. Drafting and execution mistakes are uncommon, and there should be no reason for a lawyer to influence their client, pressure them to leave their property to a specific person or entity, or engage in fraud. In addition, your lawyer cannot be your beneficiary and are generally not permitted to appoint themselves as executors/trustees without first sending their clients out for an independent consultation with a lawyer from another firm.

California estate planning attorneys

There is no way to ensure that your estate plan will go unchallenged, but you can minimize the chances of that happening by taking steps that will make it not worthwhile for anyone to do so. For assistance, contact the estate and tax planning attorneys at Moskowitz, LLP.

Why a Tax Attorney's Advice is Important: Case Study - Cavallaro

Estate Planning, Gift Tax, Business Succession, and the Ability to Rely on Advice of Counsel

JD Supra Business Advisor recently published our case study on the Tax Court Opinion in the Cavallaro matters - a true rags to riches story involving taxation, and why a tax attorney's advice/representation is important. While the dollar amounts involved in this case may seem beyond reach for most individuals and businesses, the underlying issues are relatively common and demonstrate the importance of obtaining quality tax representation for business succession planning, estate tax planning and more.

You can check out the article here.


CRIMINAL TAX CORNER: IRS Warns of Telephone Scams We have reported before and now again that we have received countless calls from frantic individuals that have been the victim of a scam.

Now, the IRS has issued the following warning:

The IRS has seen a recent increase in local phone scams across the country, with callers pretending to be from the IRS in hopes of stealing money or identities of victims. These phone calls include many variations, ranging from instances from where callers say that the victims owe money or are entitled to a huge refund. Some calls can threaten arrest and threaten a driver's license revocation. Sometimes these calls are paired with follow up calls from people saying that they are from the local police department or the state motor vehicle department.

Characteristics of these scams can include:

  • Scammers using fake names and IRS badge numbers. They generally use common names and surnames to identify themselves.
  • Scammers may be able to recite the last four digits of a victim's Social Security Number.
  • Scammers may intimidate the IRS toll free number on caller ID to make it appear that it is the IRS calling.

After threatening victims with jail time, scammers hang up and others soon call back pretending to be from the local police, and the caller ID supports their claim.

If you get a phone call from someone claiming to be from the IRS, here is what the IRS recommends: If you know you owe taxes call the IRS at 800-829-1040 (or call us). If you know you don't owe taxes or have no reason to think that you owe any tax, then call and report the incident to the Treasury Inspector General for Tax Administration at 800-366-4484.

Don't hesitate to contact us if you are worried about your tax situation. We can help!