If you have taken the time to create a Last Will and Testament, you undoubtedly did so with the hope that doing so will ensure that your estate assets will be handled according to your wishes during the administration of your estate. If someone challenges your Will, however, it could result in those wishes being ignored and the state deciding what happens to your assets. A North Andover area estate planning attorney at DeBruyckere Law Offices offers some steps you can take that will help prevent a Will contest after you are gone.
How Does a Will Contest Work?
Not long after your death, the individual you named as the Executor of your estate in your Last Will and Testament will initiate the legal process known as “probate.” Probate serves several important functions, including the authentication of a decedent’s Last Will and Testament. If no one challenges the validity of the Will submitted to the court, the probate process will proceed as planned. If, however, someone does contest the validity of the Will, the probate process must effectively come to a halt while the challenge is litigated. If the contestant is successful, the state intestate succession laws will be used to probate your estate unless there is another valid Will presented to the court. If the contestant is unsuccessful, the probate process resumes, using the terms of your Will to determine how your estate assets are distributed.
Steps You Can Take to Help Prevent a Will Contest
If is imperative to keep in mind that nothing you do (or don’t do) can guarantee that your Will makes it through probate without any bumps along the way. Having said that, there are some steps you can take that will dramatically decrease the probability of your Will hitting any substantial bumps, including:
- Work with an experienced attorney. Creating your Will is absolutely not the time to try and go the DIY route. DIY legal forms you find online frequently increase the odds of a Will challenge because they are so often riddled with errors, inaccuracies, and missing or stale language. Moreover, working with an estate planning attorney provides a disinterested witness who spent considerable time with you around the time you executed your Will. If someone does contest your Will by alleging that you lacked “testamentary capacity” at the time of execution, your attorney can refute that claim.
- Make probate avoidance an estate planning objective. Incorporating probate avoidance tools and strategies into your estate plan goes a long way toward preventing a Will contest because all assets that are gifted in your Will must go through probate, subjecting them to the possibility of a Will contest. Conversely, mon-probate assets though bypass probate altogether, meaning they cannot be the subject of a Will contest. Common examples of non-probate assets include trust assets, certain types of jointly held property, and funds held in a “payable on death (POD)” account.
- Make an appointment with your regular doctor right before executing your Will. Why? Because a physical around the time of execution provides evidence of your state of mind, should it be needed down the road. Claiming that the Testator lacked “testamentary capacity” is a common basis for a Will contest. Having a complete physical done right before signing your Will creates an excellent record of your physical and mental capacity.
- Explain anything controversial in a Letter of Instruction. A Letter of Instructions is simply a letter that is written by you explaining anything not already covered elsewhere in your estate plan. You can use this option to explain why you made certain decisions that might be controversial or that are likely to cause a challenge. This is particularly important if you disinherited an heir. Making it clear that it was your intention to do so may prevent a claim of “mistake.”
- Include a “no contest” clause in your Will. A “no contest” clause is a provision in a Will that effectively disinherits anyone who tries to contest the Will. State laws vary with regard to how they approach no contest clauses but it may still be a useful deterrent because they can be enforced.
Contact a North Andover Area Estate Planning Attorney
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about how to prevent a Will contest after you are gone, contact a North Andover area estate planning attorney at DeBruyckere Law Offices by calling (978) 969-0331 to schedule an appointment.
Daniel DeBruyckere
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