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Biddle Law Estate Planning Blog

Monday, June 19, 2017

The Perils of Probate Litigation: How to Avoid a Will Contest

There are a number of reasons to create a will not the least of which are to protect your assets and provide for your loved ones. Nonetheless, having a will does not necessarily mean your wishes will be carried out. In fact, an estate can be exposed to a will contest if a dispute arises among family members. 
 
While these disputes may arise when assets are not distributed equally among the beneficiaries, particularly adult children, a will can be contested for a number of reasons, including:

  • The testator lacked capacity
  • There was undue influence on the testator
  • The will was not properly executed
  • The will was prepared fraudulently 

Avoiding a Will Contest: 101

Although will contests are not uncommon, there are steps you can take to avoid a will contest and intervention by the probate court. One of the common mistakes people make in estate planning is procrastinating, and not preparing a will until their health is failing. If you are not of sound mind and body at the time you create your will, the probate court may determine the will is invalid because you lacked mental capacity. In other words, don't delay; today is the day to put your will in place.
 
Additionally, will contests are often based on claims that the testator was under undue influence of one of the beneficiaries. For this reason, it is crucial to prepare your will privately. Moreover, beneficiaries should not participate in discussions with your estate planning attorney. Finally, beneficiaries cannot serve as witnesses to your will. 

Consider a Revocable Living Trust

Although a will can be used to leave property to surviving loved ones and to name guardians for minor children, many individuals are better served by creating a revocable living trust. Unlike a will, a living trust is a private document that does not go through probate, whereas a will is a public document that can be subject to a contest once it is filed in probate court. Living trusts also provide you with flexibility to make changes during your lifetime or to leave instructions for distributing assets to beneficiaries under specific conditions, such as achieving personal and financial goals.

Update Your Estate Plan

Regardless of whether you utilize a will or a trust, it is crucial to keep you estate plan updated as your lifestyle changes: marriage, divorce, having children, getting remarried and so on. In short, periodically review your estate plan with your attorney as your personal and financial situation changes.

Speak to an Attorney

If you are thinking about creating an estate plan, you are well advised to consult with an attorney with experience in estate litigation who can help to prepare a valid will, ensure that it is properly executed, and ultimately avoid a will contest.



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