Estate planning can seem like it is all about the decisions that you make with regard to the way that you distribute your assets. This is definitely the core of the exercise, but in order for everything to go smoothly, you should consider the other half of the equation.
How will the people that you include in your plan feel about the decisions that you made? Even more profoundly, what about individuals that were left out? In this post, we will look at some details about estate challenges.
Last Will Contests
If you use a last will to state your final wishes regarding the distribution of your assets, you would name an executor in the document. This person or entity would serve as the estate administrator, and they would be required to admit the will to probate.
The court would supervise the administration of the estate, and one reason why probate exists is to confirm the validity of the will that is presented. A will can be contested on a number of different grounds.
One of them is incapacity. If interested parties have reasons to believe that the testator of a will was not in full control of their faculties when the document was executed, they could make a case before the court.
Undue coercion is a ground that would be acceptable, and it is essentially self-explanatory. Allegations of fraud would be another foundation for a will contest. For example, a person could be deceived into signing a will when they thought they were signing some other type of document.
There are rules in place with regard to the way that a last will is executed, and they vary somewhat state-by-state.
In California, a will must be signed in the presence of two witnesses, and the witnesses must sign the will at the same time as one another. Neither of the two witnesses should be named as inheritors in the last will. Someone could contest a will based on the contention that it was not validly executed.
If you decide to use a last will as the centerpiece of your estate plan, and you know that someone will have a problem with your decisions, you should take this into consideration. Probate is a time-consuming process even when there are no difficulties, and a challenge can really slow things down.
You could ask yourself if the message that you are sending is really worth the acrimony that it will cause after your passing. Short of changing your mind, you could consider communicating your decisions with anyone that may be unhappy with them.
In a perfect world, they may understand and agree not to harbor any hard feelings. Even if this is not possible, there may be no grounds for a challenge if the party knows that you made the decision on your own under legitimate circumstances.
A living trust can be a better alternative to a last will as an asset transfer vehicle for a number of different reasons. We will not get into them here because we will stay focused on the matter of estate challenges.
You may want to use a living trust instead of a last will to make a challenge more difficult for a beneficiary that may not be happy with their inheritance.
The first advantage on this level is the simple fact that transfers through the terms of a living trust do not pass through probate. As a result, the ready window of opportunity for estate an challenge is not there.
A no-contest clause could be included to completely disinherit any beneficiary that files a lawsuit to challenge the terms of a living trust. They could still file the suit, but the clause would act as a powerful disincentive.
Attend a Free Seminar!
Our attorneys are holding a series of free seminars over the coming weeks, and we will take a close look at living trusts and many other important estate planning topics. There is no charge to attend these sessions, but we ask that you register in advance, because space is limited.
To do just that, visit our seminar schedule page and follow the simple instructions to register for the date that works for you.