For most people, one of the primary motivations for creating a comprehensive estate plan is to ensure an orderly distribution of their estate assets after their death. The reality is that even when an estate plan works precisely as planned, the process of probating an estate is a difficult time period for the surviving loved ones. When disputes arise over the estate during the probate process, it can hold up the distribution of assets for months – sometimes years – and can significantly diminish the value of the estate that is left to distribute when the dispute is resolved. The Beverly probate attorneys at DeBruyckere Law Offices offer some tips to help your estate avoid disputes when it comes time to probate your estate.
What Is Probate?
When an individual dies, he or she leaves behind assets owned at the time of death. Those assets make up the decedent’s estate. Probate is the term given to the legal process that eventually transfers those estate assets to the intended beneficiaries and/or heirs of the estate. Probate also serves other functions, including:
- Authenticating the decedent’s Last Will and Testament if one was left behind
- Identifying, locating, securing, and valuing estate assets
- Locating legal heirs of the estate if the decedent died intestate, or without a valid Will
- Allowing creditors the opportunity to file claims against the estate
- Litigating any challenges to the Will or estate
- Ensuring the taxes owed by the estate are paid
What Can You Do to Avoid Probate Disputes?
No one wants their estate to end up in costly and time-consuming litigation. Although there is no surefire way to avoid that from happening after you are gone, there are some things you can do to limit the likelihood that your estate will end up in litigation, including:
- Work with an experienced estate planning attorney. It may seem like using fill-in-the-blank estate planning forms is a good way to save time and money; however, in the long run, the DIY route dramatically increases the likelihood of litigation when it comes time to probate your estate because those forms are notoriously vague, out of date, not state specific, and otherwise invalid. Working with an experienced estate planning attorney ensures that everything is done correctly and offers the best defense against disputes.
- Choose your Executor wisely. People often appoint a spouse, family member, or close friend as the Executor without thinking if that person is the best person for the job. The wrong Executor encourages challenges whereas the right Executor will deter those challenges. Think of your Executor as the gatekeeper and the CEO of your estate and choose accordingly.
- Consider including a no-contest clause in your Will. A no-contest clause effectively penalizes a beneficiary for contesting your Will. For a no-contest clause to be effective, however, the beneficiary must have something to lose if he/she pursues a challenge. Consequently, this strategy only works if you are willing to leave the beneficiary something in your Will that is valuable enough that the beneficiary will think twice about initiating a dispute.
- Explain choices that could cause disputes. The assets that make up your estate are yours to do with as you see fit. That being said, sometimes explaining the decisions you made in your estate plan can ward off litigation. For example, completely disinheriting a child is likely to trigger a Will contest because that child has nothing to lose and may not understand why he/she was left out of your Will. Leaving large bequests to charity or to someone nobody in your family knows well is also likely to raise a question that can lead to litigation. Explaining your choices prior to your death can help prevent disputes after you are gone. If you don’t want a face-to-face conversation, consider executing a “Letter of Instructions” that explains your choices and including it with your estate planning documents to be read after you are gone.
- The best defense is a good offense. To contest a Will, a contestant must allege (and ultimately prove to be successful) that the Will is legally invalid. The most common grounds on which a Will can be challenged are lack of testamentary capacity or undue influence. Help your Executor defend these claims by planning ahead. Have a full mental examination conducted by a geriatric psychiatrist or another qualified medical professional shortly before executing your Will. Meet with your estate planning lawyer, by yourself, to discuss your wishes and execute your Will in front of your attorney and at least two disinterested witnesses. Lastly, by all means, avoid last-minute changes to your Will, a trust agreement, or any other aspect of your estate plan when possible.
Contact Beverly Probate Attorneys
For more information, please join us for one of our upcoming FREE seminars. If you have additional questions about avoiding probate disputes, contact the Beverly probate attorneys at DeBruyckere Law Offices by calling our New Hampshire office at (603) 894-4141 or our Massachusetts office at (978) 969-0331 to schedule an appointment.