Your Last Will and Testament is intended to create a roadmap for the distribution of your estate after you are gone. What happens though if someone challenges the validity of your Will by filing a Will contest? Not only will the litigation that ensues be costly, in terms of both time and money, but if the contestant is successful your wishes regarding your assets will not be honored. To help you protect your assets and your wishes, the Los Angeles estate planning attorneys at Schomer Law Group, APC discuss what you can do to prevent people from contesting your Will.
What Happens to Your Will after Your Death?
Probate is the legal process that is typically required after the death of an individual. Probate is intended to serve several functions, including the authentication of a Last Will and Testament submitted on behalf of the decedent. If the Will is authenticated, the terms of that document will then be used to determine how the decedent’s estate assets are distributed. Before the Will is authenticated, or “proven, during the probate process, any “interested person” can contest the Will. Although a Will can be contested after the probate process concludes, it is more difficult to do so which is why most Will contests occur before probate terminates.
How Does a Will Contest Work?
Contrary to what people often believe, an individual cannot contest a Will simply because he/she is not happy with the inheritance left to them under the terms of the Will. A Will contest must allege, and ultimately prove to be successful, that the Will is invalid for one of several narrow reasons, including things such as lack of testamentary capacity, undue influence, or fraud. Once a Will is challenged, the probate process effectively grinds to a halt while the contest is litigated because the outcome determines how the estate will be probated. The Executor of the estate, appointed in the Will by the decedent, is required to defend the Will submitted for probate. As you can imagine, litigating a Will contest often costs the estate a considerable amount of money in legal fees and other expenses. In addition, the beneficiaries of the estate must wait even longer to receive their intended gifts because of the Will contest. If the contestant ultimately prevails, the Will is declared invalid and, unless another valid Will can be located, the Florida laws of intestate succession are used to distribute the estate assets. If the contestant is unsuccessful, the probate process resumes, and the estate assets are distributed according to the terms of the Will.
Tips to Help Prevent a Will Contest
Although there is no sure-fire way to prevent someone from contesting your Will, there are some things you can do to decrease the likelihood of a Will contest, such as:
- Do what you can to avoid probate. Your Will is required to go through probate, opening the door for a Will contest. Non-probate assets, however, bypass probate altogether. As such, non-probate assets cannot be affected by a Will contest, therefore decreasing the potential gain by challenging the Will. Common examples of non-probate assets include trust assets, certain types of jointly held property, and funds held in a “payable on death (POD)” account.
- Including a “no contest” clause in your Will. his is a clause you include in your Will that effectively disinherits anyone who chooses to contest your Will and is unsuccessful.
- Discussing your intentions ahead of time. Although it is a highly personal decision, sitting down and explaining your intentions ahead of time can prevent conflict, hard-feelings, and/or confusion after your death, decreasing the likelihood of a Will contest.
Contact Los Angeles Estate Planning Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about preventing a Will contest, contact the experienced Los Angeles estate planning attorneys at Schomer Law Group APCby calling (310) 337-7696 to schedule an appointment.