While the vast majority of Wills pass through probate without problems, it is hard to predict whether a family member will challenge your Will upon your death. Any “interested party” - anyone who could potentially gain or lose something if the will is carried out as written - can contest a Will. A Will contest can drag out the probate process and cost your estate thousands of dollars. Fortunately, there are things you can do to make it more difficult for someone to contest your Will.
State the Reason for a Reduced Share in a Letter of Intent
If you are leaving someone out of your Will or if you are giving that person a reduced share of your estate (as compared to another beneficiary), write a letter of intent to your Executor stating the reason why that person is receiving nothing or a reduced share. Delve into as much detail as you are comfortable divulging to explain the disposition of your estate. Make sure the attorney drafting the Will reviews the letter of intent. Keep the letter of intent with your Will.
Include a No Contest Clause in the Will
Another strategy to avoid a Will contest includes a “no-contest” or “in terrorem” clause in your Will. A typical “no-contest” clause states that if an heir challenges your Will and loses, then he or she gets nothing. Whenever our estate planning attorneys include a no contest clause, we typically advise leaving the heir enough of a gift so that any challenge they make to the Will would not be worth the risk of forfeiting the gift under the Will. Read my article “Avoiding Will Disputes with ‘No Contest’ Clauses” for more information on what a “no contest” clause is and how they work.
Obtain a Physician’s Evaluation Report
One of the most common grounds for challenging a Will is for the person challenging the Will to argue that the testator was mentally incompetent at the time of signing the Will. To avoid a Will contest, the testator can visit with a doctor - preferably a psychiatrist, geriatrician or psychologist - to complete a competency evaluation report. While this strategy is admittedly difficult, expensive and time-consuming, there’s nothing like a report from a psychiatrist to show that the testator was competent. Obviously, such an examination and report should be performed during the same time period the Will is being written and signed.
Videotape the Will Signing
A video recording made during the actual Will signing can go a long way toward proving that you signed your Will freely and voluntarily. It would also be powerful for you to explain in your own words the reasoning behind the disposition of your estate. Yet, videotaping does entail some risks. The video can inadvertently show that the testator lacked capacity or another person unduly influenced the estate plan. Any practice sessions with the attorney would be subject to discovery in court. Consequently, this strategy is rarely used except when the testator (the signor of the Will) is clearly competent and comfortable in front of a video camera.
Keep Intended Beneficiaries Away from the Preparation and Signing of the Will
In order to avoid a Will contest, you should do everything in your power to remove any appearance of undue influence, not only while the Will is drafted but especially when it is signed. That means you should not involve anyone who stands to inherit under the Will during the drafting and execution process. In other words, do not have any beneficiary of the Will present when (i) the structure of the Will is discussed with the attorney drafting the Will, (ii) you travel to the attorney’s office, or (iii) you sign the Will.
Avoid Using a Will to Transfer Your Property
The best strategy to avoid a Will contest is to avoid formal probate. How do you avoid formal probate? Here are some ways you can do that:
- Give property during your life to the intended beneficiary while you are clearly independent and competent.
- Have beneficiary designations for all of your investment accounts, retirement accounts, and retirement plans.
- Put real estate in a trust or hold it with the intended beneficiary as Joint Tenants with Rights of Survivorship.
- Assign tangible personal property like artwork, jewelry, coin collections, antiques, and other such property to a trust.
- Designate the beneficiary of your car on the back of your car registration. Own your valuable boat jointly with its intended beneficiary.
Avoiding formal probate will mean the Will controls no property. If the Will controls no property, then disgruntled heirs will have nothing to fight over. With nothing to fight over, your executor will simply file an estate tax return, distribute the property to the intended beneficiaries and close the estate.
Ultimately, you should consult with an experienced estate planning attorney to help you draft your Will and prepare your estate plan. The attorney will know the best way to protect your estate and he or she can advise you on strategies to make your estate plan as rock-solid as possible. If you have questions about how best to avoid a Will contest, please don’t hesitate to call the estate planning attorneys at Cipparone & Zaccaro, PC.
