Will Contests: 10 Ways to Protect Against Estate Plan Challenges

May 6, 2011
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Image by JoshBerglund19 via Flickr

Getting your will drafted is a daunting enough process without worrying about whether or not to disinherit family.  If you anticipate that anyone will try to challenge your will, then your estate planning documents should provide as much protection as possible against a “will contest”.

A will contest may be brought by any person who is directly and negatively affected by the terms stated in the decedent’s will.  For example, an heir who receives nothing would have standing (i.e. the legal right) to contest the will.  On the other hand, a caretaker child who receives amounts equal to her absent siblings would not have standing to contest since she would receive the same inheritance if the will failed.

Examples of Situations Ripe for a Will Contest

If you or a family member is experiencing any of the following situations, you should probably take extra precautions in your estate planning:

  • Blended Family – For example, you favor a new spouse over your children from a prior marriage
  • Conditions on Gifts – You place a condition on the inheritance, such as requiring the beneficiary to marry someone of a certain religion.
  • Disinheritance – You disinherit a child in your will, or worse, you fail to mention the child in your will.  Another example is if you give unequal gifts to your children or similarly situated relatives (such as your cousins or your nieces and nephews).
  • Estate Value in Question – You have hidden assets or the value of your estate assets is in question.
  • Fraud – You signed the will while relying on some trick or misinformation.
  • Inconsistency – Your will and trust are not consistent with one another.
  • Last Minute Changes – You change your will on your deathbed or give large gifts right before your death.
  • Lifestyle – Your will reflects a lifestyle that differs from the values of the potential heirs.
  • Mental Capacity in Question – When you signed your will, you lacked the ability to understand the extent of your property, your natural heirs, and who receives what under your will.
  • Undue Influence – One of your heirs has convinced you to change your will in her favor at the expense of other heirs.

10 Ways to Mitigate Against a Potential Will Contest

Proper documentation, close review of your overall estate plan, and clear communication can deter or even eliminate a potential challenge to your will:

Documentation

  • Document Your Mental Capacity – Make sure your attorney clearly establishes your mental capacity at the time you sign your will.  Get evidence of your abilities from a doctor if necessary.
  • No-Contest Clause – Here, you would add a clause to your will saying that a beneficiary who challenges the will shall forfeit their entire gift.
    • In both Maryland and Pennsylvania, a no-contest clause is unenforceable if the objector has “probable cause” to challenge the will (i.e. has a reasonable belief that the contest will be successful).
    • In Virginia, such a clause is enforceable even if the objector has probable cause.
    • Be sure to check your state law before attempting this strategy.
  • Videotape the Signing of Your Will – This would ordinarily seem to be an effective way of proving your competence.  However, some attorneys feel that if you go to all that trouble, it could serve as a red flag that competence is actually at issue.  In addition, no U.S. state allows a video as the only proof of capacity, due to the ease of alteration.
  • Create a Revocable Living Trust – In general, the living trust is viewed as more enforceable than a will.  One major reason is that a person who actively used a trust during his lifetime probably did not do so under any undue influence or fraud.

Review of Your Plan

  • Account for Property Outside of Your Will – Be careful that non-probate assets have been taken under consideration in your estate plan.  For example, say you currently have a joint bank or brokerage account with your child.  In all states, this child will control the entire account upon your death, despite anything the will might state.  Make sure that this is your intention, especially if the joint account is sizable and/or creates unequal benefits.
  • Pre-Mortem Probate – Six states, Alaska, Arkansas, Delaware, Nevada, North Dakota and Ohio, allow the court to review your will before your death to help determine its validity.

Communication

  • Clearly State Your Intentions – In your will, clearly state your intention to disinherit an heir instead of just omitting his name.  Some lawyers will include clauses that explain why you wish to give more to one child than another.
  • Write a Side Memorandum – Explain the entire thought process behind your estate plan in a separate, unenforceable document that accompanies the will.
  • Make a Deal with the Potential Contester – If you anticipate trouble, you can possibly avoid a challenge by making a contract with the objector.  For instance, you might sign a deal with the objector to give him a gift during your life in exchange for him not contesting the will after your death.
  • Work It Out – Talk things out with your family while you still have the chance.  This is ideally the best solution of all.
 Will Contests: 10 Ways to Protect Against Estate Plan Challenges
 Will Contests: 10 Ways to Protect Against Estate Plan Challenges

Scott

Scott R. Zucker, Esq. is the owner of The Zucker Law Firm PLLC, located just outside the Capital Beltway in Annandale, within five miles of the City of Fairfax, the county seat of beautiful Fairfax County, Virginia. The firm focuses mainly on estate planning services for Virginia, Maryland and Pennsylvania clientele, and seeks to do so in an affordable and approachable way. People interested in learning more can contact Scott by phone or email.

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One Response to Will Contests: 10 Ways to Protect Against Estate Plan Challenges

  1. Debra Prince
    May 10, 2011 at 7:58 pm

    Your first instruction should be to have your will read to you by a local librarian, neighbor or member of your church with whom you have no relationship! Estate theft is rampant in Maryland and mostly facilitated by attorneys working for unethical fiduciaries. Best protection in that scenario is to have a clause included REQUIRING AN ATTORNEY REPRESENT THE INTEREST OF THE ESTATE and never the personal interests of protections of the fiduciary! This is wonderful scam used across the country. Here’s how it works. The will provides for an attorney for the fiduciary, which totally sabotages anything contained in the will. Why? The fiduciary is then free to conceal assets, misreport information in accountings, delay/ prevent access to source documents, then delay forever distribution of assets and closure of the estate. It’s the ultimate in identify theft and self dealing. The personal representative knows that if he withholds assets and information, then he forces legatees to obtain their own counsel and sue for action. They of course know they’re losing twice their inheritance since they and the estate bare the cost of all legal fees! The personal representatives attorney makes a “killing” aka “self dealing”, while the personal representative watches the families struggle in the Chinese finger torture called “probate” in Maryland. Why not to the ethical thing and advise people NOT make wills, but instead, designate whomever they want as direct beneficiaries of assets! This allows probate to be circumvented and keeps the courts and personal representatives totally out of the picture! After all, no one writes a will to insure that their taxes and debts are paid, but rather to insure their assets are passed along as desired. Most elders are too visually impaired to read these documents, so unethical attorneys write whatever they want, and the testator never knows whats there! WARNING: make sure you don’t name your POA, trustee, accountant or lawyer as personal representative. This conflict of interest should be illegal across the country. In this case, you never die! Why? Whomever has control of all your assets prior to death, then never has to report your death later! How would anyone know? (hint: REQUIRE in your will that the PERSONAL REPRESENTATIVE provide direct access to all beneficiaries when requested, and if they refuse to do so, the PR will be terminated and his bond (which you should require) will be used to pay all court costs to resolve the issue. Best advice: DON”T WRITE A WILL in Maryland! Maryland, like most states, is quite able to get taxes and creditors paid if you die without a will. Don’t allow the plethora of unethical lawyers out there victimize you!

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