If you are going to be making an inheritance planning decision that will surprise and upset someone that will be expecting a bequest, you should anticipate a possible estate contest. In this post, we will look at five steps you can take to make a challenge less likely.
Take action right away.
Surveys that are conducted find that most American adults do not have any estate planning documents in place. The majority of them intend to take care of it at some point, but in far too many cases, they never get around to it.
If you die intestate or without a will or trust stating your final wishes, the Surrogate’s Court would supervise during the administration process. When there is no guidance, the court will ultimately order the distribution of the assets under the intestate succession laws.
Anyone that is interested can make a claim to the estate during probate. When people in the family know that the distributions through the succession laws will not be consistent with the outcome you would have wanted, the situation can get messy.
You can prevent this type of thing in advance if you take action to put an estate plan in place. If you decide to make changes later on, this can be easily accomplished with the assistance of an estate planning lawyer.
Use a no-contest clause.
When you are drawing up a will or a trust, you can include a no-contest clause regarding the people that are named as inheritors. If anyone contests the terms, they would be completely disinherited.
This will act as a strong disincentive, but if you completely cut someone out, they would have nothing to lose. You should keep this in mind when you make your decisions, because a nominal inheritance could potentially prevent a lot of unrest and acrimony.
Of course, someone can still decide to go forward with a challenge in spite of the fact that there is a risk involved.
Utilize a revocable living trust.
As we have stated, the court would be involved if you pass away intestate, and a will would also be admitted to probate. There is a proving of the will during probate, so the court is required to examine the document to ensure its validity.
During this process, someone can come forward to challenge the terms, so there is an open window of opportunity.
On the other hand, if you use a living trust as your primary asset transfer vehicle, the distributions would not be subject to probate. Someone could file a lawsuit to challenge the terms, but this is more complicated, and there will be attorney fees, so it is not as easy.
Review your plan regularly.
The grounds for a challenge would center on a contention that for some reason or another, the document did not express the true wishes of the decedent. These grounds include fraud, coercion, and the incapacity of the grantor.
If you pay no attention to your estate plan for decades, someone could contend that you lost touch with the contents of the document. With this in mind, you should review your existing plan with your attorney on an ongoing basis.
Preventing a contest is a benefit, but it is not the primary reason to schedule these reviews. Circumstances in your own life can trigger the need for an update, and relevant laws will be subject to change, so estate planning should be viewed as an ongoing process.
Work with our firm to develop your plan.
The last piece of advice is the most important. If you work with our firm to put a plan in place, and you tell us that you have concerns about a challenge, we can help you take the right steps to prevent it. And of course, we will be standing at the ready to review the plan as the years pass.
You can set the wheels in motion right now if you give us a call at 585-374-5210, and you can use our contact form to send us a message.
- What Are the Steps in the Probate Process? - September 23, 2021
- Changing “Irrevocable” Trusts Through Decanting - September 22, 2021
- Donor Advised Funds: Too Good to Be True? - September 15, 2021
