When you are planning your estate, you may have concerns about someone in the family not being happy with your decisions. Clearly, a contested estate can be a messy situation, and you can take these steps in advance to minimize the possibility of a successful challenge.
The worst thing that you can do is nothing at all. If you die intestate or without an estate plan, the probate court would supervise the administration process. A personal representative would be named, final debts would be paid, and the court would review the details.
If someone wants to make a claim to an inheritance, they could present their case. For example, some long-lost relative could suddenly come forward, or there can be a paternity claim.
Since there would be no documents to support your true wishes, the situation would be complicated and messy.
Even if you are not sure that the details that you would include today will be consistent with your choices in the future, you should have a plan in place at all times to avoid intestacy.
Include a No-Contest Clause
When you are drawing up a simple will or a living trust, you can include a no-contest clause. This would trigger the disinheritance of someone who is named as an inheritor if they issue a challenge to the terms of the will or trust.
They would still be able to run the risk if they choose to do so, but it would be a gamble that most people would not want to take.
Estate planning attorneys will counsel people to think twice before they completely disinherit a child, because they are inviting trouble that can negatively impact their other children.
If you leave the person a nominal inheritance through a device with a no-contest clause, you can make the point and minimize the drama.
Use a Living Trust
There are a number of reasons to use a living trust instead of a simple will as the centerpiece of your estate plan. One of them is the fact that it is considerably harder to challenge the terms of a trust.
A will is admitted to probate, and the process is much less nebulous when a will has been executed (rather than no estate plan at all), but, it opens a window of opportunity for disgruntled parties who may want to challenge the terms of the will.
Since the court is required to determine the validity of the document, anyone who wants to present a challenge has a forum while the estate is in probate.
On the other hand, if you have a living trust, the administration of the estate would not be subject to probate. As a result, this open opportunity to issue a challenge does not exist.
Someone could file a lawsuit to challenge the terms, but this is more complex, and there are expenses involved. When you couple these disincentives with the no-contest clause, the prospect of challenging the estate is not going to be very appealing.
Review Your Plan Frequently
An estate challenge can revolve around the contention that the estate planning document that existed at the time of your death did not reflect your true wishes. If you drew up a will 50 years before your passing and there were no updates, this type of claim could have some credence.
On the other side of the time spectrum, if you die after revising your will on your own a couple months before your passing, there could be the appearance of coercion or undue influence.
With these things in mind, you should review your plan with your estate planning attorney every three years or so. When everyone in the family knows that you were on top of your estate plan at all times, they will recognize the fact that a challenge would be pointless.
Take Action Today!
If you have been thinking about putting an estate plan in place, today is the day for action.
We know that it can be disconcerting to discuss these matters with someone you have just met. When you choose our firm, you can rest assured that you will feel perfectly comfortable every step of the way.
One of our attorneys will gain an understanding of your situation and help you devise a custom crafted plan that is ideal for you and your family.
You can set the wheels in motion right now if you call us at 913-262-2000, and you can use our contact form if you would rather send us a message.