Protecting Your Estate from a Will Contest
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.
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.