Have you ever worried that your family may try to contest your estate plan after you have passed away?
Two issues come to mind. First, is that you have taken the time to write down your desires. It is frustrating to think that someone would try to undermine your goals once you can no longer correct them. Second, this is a valid concern because Will contests can be very damaging to the family members and ugly (not to mention expensive) legal battles.
After losing a loved one, the emotions (especially anger) can be misplaced and directed at an undeserving recipient. People aren’t always thinking clearly due to the emotion fog they are in due to the lost loved one. Families can be torn apart. Sadly, often the one person that had the ability to bring family members back together after a fight is the one they just lost.
This can be exceptionally damaging when families fight over minor children. Often what happens is the child loses Mom and Dad, and if Grandparents fight over who should be the guardians, the child also loses the Grandparents that are not awarded custody.
So, what to do?
The best way of minimizing a potential contest is to have a professionally prepared Will or Trust. A professional understands the key areas that someone would attempt to attack the validity of that Will or Trust and prepare for it. So, how do you avoid, or decrease, the chances of this happening after you pass away?
Have Your Will or Trust Prepared by an Attorney: Why is this so important? An attorney can custom tailor your Will or Trust in clear, specific language, ensuring the provisions work together and not in conflict with each other. The potential for contest is increased if any of the provisions are conflicting. Do-it-yourself Estate Plans from the internet, Legal Zoom, Rocket Lawyer, or Nolo cannot custom tailor your Will or Trust. If you don’t know what a provision means, how are you going to know how it interacts with other provisions in your Will or Trust? Also, a lawyer will ensure that your Will is properly witnessed to ensure its validity.
Make your Will or Trust Contest Resistant: Three common contests of an estate plan involve: 1) Mental incompetency; 2) Creating a Will based on coercion or threat; or 3) Enticing someone to make a Will based on a false promise. The signing ceremony helps to minimize contests of Wills or Trusts as the ceremony ensures that none of the above have occurred and it has the creator swear to this in front of witnesses. Those witnesses then swear to this fact in front of a Notary Public.
Inclusion of a No Contest Clause: A no contest clause is not always required in a Will, but it can be beneficial if you believe your heirs might try to alter your wishes. This clause often reads that any person receiving an inheritance, or potentially receiving an inheritance, from your Will or Trust will forfeit that inheritance if he or she contests any part of the Estate Plan.
Be Specific: It is always easiest for us to say, “Let the kids decide what to do.” However, this seeming innocent mindset is exactly the kindling needed to start a contest when you pass away. My suggestion is to be as specific as possible. Any opportunity for your children’s opinions to have a voice, is an opportunity for conflict. It is your plan. Your opinion matters. Not the kids’.
If you want to have a professionally created Will or Trust and increase the potential of family harmony after you have passed, call Jeppesen Law, PLLC at 208-477-1785 or visit https://calendly.com/idahoestateplanning to schedule your complimentary initial consultation!