Have you thought about disinheriting a child or grandchild?
Do you intent to “write” an heir out of your will who might expect an inheritance?
Are you leaving one child more than another child?
Do you children have radically different needs and you are considering an unequal distribution or gift to your children?
If you answer yes to any of these questions then your estate planning may not be as simple as you think. And, it is vitally important that you read this brief article and consider some of the options because all of these factors have lead and regularly result in will contests.
First, you may need an attorney that practices regularly if not exclusively in the area of trust and estates planning – a “will lawyer.” Why? Will contests can be expensive, time consuming and very disruptive to family relationships. An experienced lawyer will give you all of your options and will take precautions to ensure that your capacity is documented, that you wishes get carried out, and that family relationships can be preserved whenever possible.
Next, consider making a gift to a person who you might have initially left out of the will. This reduces the likelihood that the omission will be viewed as a mistake. And, if you also include a special no contest clause in your will the party being given a gift has an incentive not to attack the document.
Such clauses typically provide that if a beneficiary challenges the will or trust, that they lose any gift to to them under the terms of the document. However, a child who is left nothing has no incentive to hold back and a contest is more likely.
It is also important to document that you have capacity to make the will and that you are not being influence by a family another member. We have a practice of asking a series of questions of each client, before the will’s witnesses to insure that the witnesses have an opportunity to verify that you know what you are doing, that all of the formalities are being observed, that the will is not invalid and that you are not under the influence of drugs or alcohol that might diminish your ability to understand everything that is occurring.
In this way, we can discourage will contest, and if they occur, we can minimize the likelihood of success of the challenger and make sure that your wishes are actually carried out.
More to follow on avoiding a challenge to your will:
Consider a pour over will
Fund the trust
Coordinate with non probate assets
Get evidence from a doctor when desirable
Improve family communication
Consider a memorandum
Call Donna Brownback for an appointment or more information.
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