One of the many reasons to execute a Last Will and Testament is to ensure that your estate assets are distributed according to your wishes after you are gone. If someone successfully challenges your Will during the probate of your estate, however, the terms of your Will won’t be honored. Knowing that, it only makes sense to do what you can to prevent a Will contest. With that in mind, the Los Angeles attorneys at Schomer Law Group, APC explain five things you can do to help avoid a Will contest.
What Is a Will Contest?
Shortly after you pass away, your estate must go through the legal process known as “probate,” during which time your estate assets will be identified, valued, and eventually transferred to the beneficiaries named in your Will. Another important function of the probate process is the authentication of a decedent’s Last Will and Testament. After a Will is submitted for probate, any “interested person” may challenge the validity of the Will using one or more of several available legal grounds. If that challenge is successful, the Will is declared invalidate and a previous valid Will or the state’s intestate succession laws will determine what happens to the estate assets.
What Can I Do to Avoid a Will Contest?
Unfortunately, there is no guaranteed method that ensures your estate will avoid a Will contest. There are, however, some things you can do that can greatly decrease the likelihood of a Will contest, including:
- Include a No Contest Clause in Your Will. A “no contest” clause acts as a deterrent to anyone contemplating a Will contest by penalizing them if they challenge the Will. For example, imagine that your adult son receives $50,000 under the terms of your Will but stands to inherit $250,000 under the state’s intestate succession laws. If there is a no contest clause in your Will, your son can accept the guaranteed $50,000 inheritance or risk losing everything by contesting your Will.
- Share the Details of Your Will with Loved Ones. Although a contestant must allege (and ultimately prove) legal grounds on which a Will can be invalidated, challenges are often rooted in a beneficiary’s surprise at the terms of the Will. One way to avoid this is to tell beneficiaries well ahead of time what they will receive so they have time to work through their feelings before your passing.
- Create a Letter of Instruction. If you are uncomfortable with the idea of sharing the terms of your Will with loved ones prior to your death, including a Letter of Instruction with your Will may be the solution. A Letter of Instruction is not a legally binding document. Instead, it allows you to add information or “instructions” to your overall estate plan. It can also be used to explain why you made the decisions you made in your Will.
- Submit to a Thorough Medical Examination Right before Executing Your Will. Claiming that a Testator lacked the necessary testamentary capacity is a common basis for a Will contest. One way to head off a claim that you were “not in your right mind” when you executed your Will is to submit to a complete medical examination just prior to signing the Will. The doctor who performed the examination can then testify as to your mental state and cognitive ability around the time you executed the Will.
- Work with an Experienced Attorney When Creating Your Will. Going the DIY route may sound like a great way to save time and money when executing a Will; however, executing a Will without the advice and guidance of an experienced estate planning attorney invites challenges after you are gone. Not only is it likely that the Will includes errors, fails to completely distribute your estate, and may fail to meet the technical requirements for executing a Will in California, but you miss a great opportunity to have a additional professional available to attest to your “testamentary capacity” should your Will be challenged based on your lack of capacity.
Are You Ready to Create Your Last Will and Testament?
For more information, please join us for an upcoming FREE seminar. If you want to help your Will avoid a Will contest in California, contact the experienced Los Angeles estate planning attorneys at Schomer Law Group APCby calling (310) 337-7696 to schedule an appointment.