Estate Planning Protection Package

The most unexpected events can cause a will to be challenged. A carefully crafted Estate Planning strategy becomes a mess as legal fees lay waste to the family wealth and acrimony drives members apart. It doesn’t have to happen. In most cases, a will contest and related lawsuits could have been avoided with a few preventive steps.

Most people believe a will is likely to be contested only if they leave significant assets to someone outside the immediate family, especially to a mistress, or to a second spouse instead of to children from the first marriage. Those acts are likely to trigger a battle, but those are not the only or even most common causes of disputed wills.

An unequal division of assets among children often triggers a battle. Cutting a family member out of the estate, though usually perfectly legal, also can lead to litigation. Sometimes designating which specific assets go to each heir can lead to a contest when an heir has an emotional attachment to an asset. The truth is that it is tough to forecast what will trigger a will contest.

There are steps you can take that will either prevent a will contest or diminish the chances of a successful contest.

• It is perfectly legal to cut someone out of a will or leave unequal shares to children. State laws generally prohibit one from leaving nothing to a spouse, but children generally can be disinherited for almost any reason. In fact, no reason has to be given.If you are going to favor one heir over others, do not include that heir in your estate planning process. Too often, the testator will take the favored heir to meetings with the estate planning specialist and discuss possible will terms with the favored heir. That makes it easy for other heirs to charge that the favored heir exercised undue influence.Also, be alert for relationships that could be considered conflicts of interest to an unhappy heir. For example, don’t use your favored heir’s attorney to draft your will. A relationship that seems inconsequential to you might not look that way to disgruntled heirs.
• When a child contests receiving an unequal share, there are two common grounds for the challenge. One ground is that the testator was improperly influence by someone, usually the person who received the larger share. The other ground is that the testator did not have the mental capacity to make a valid will. Fortunately, the testator can lay the groundwork to defeat such claims.At the time of the will drafting, the testator can take steps to establish mental capacity. Even a person with dementia can have proper mental capacity to make a will. The person must be lucid for periods and have the capacity to understand the assets and the potential heirs. These conditions can be established through a professional evaluation or affidavits from people who were around the testator at the time of the will’s signing.Another option is to have the will signing videotaped by a professional with the attorney present. The videotape includes reasons for the will’s provisions. Often, the attorney asks the testator questions about the key provisions, and the testator asserts that he understands the provisions and might give a brief explanation. Having a videotape usually convinces unhappy heirs that a challenge will not be successful. Of course, it is important that the testator not appear confused, “out of it,” or tired in the videotape.
• A no-contest clause is the old-fashioned way of blocking contests. Most estate planning professionals recommend that no potential heir be left completely from the will. Instead, leave the unfavored heir an amount that will be meaningful to him or her. Then, include the no-contest clause, which states that anyone who challenges the will loses his or her inheritance if the contest fails. That way, the disgruntled heir has something to lose and cannot count on the modest inheritance to pay the legal fees. The heir has to risk losing both the legal fees and the inheritance.
• Someone with the time and money can consider developing layers of wills. When a will is successfully challenged, the previous will takes effect unless it too is successfully challenged.After writing a will that might be challenged, draft another with a minor change or two. Do this until a pile of wills is established. Then, if an heir successfully challenges the last will, the previous will with essentially the same provisions takes effect. The heir has to challenge all the wills in order until all the offending wills have been thrown out. That takes a lot of time and money and isn’t likely to be successful.
• Avoiding probate for key assets is another option. A revocable, living trust and the assets owned by it are not reviewed by the probate court. Instead, the terms of the trust decide who owns the assets after the trust creator passes away. The trust isn’t even recorded publicly. To challenge the terms, an heir first has to learn about the trust and try to discover its terms.After that, the trust has to be challenged in court. Trust contest law is less developed than will contests, and it is difficult in most states to challenge a trust and its terms. In some states, a living trust is preferred for most assets instead of a will because the cost and the delay of probate are so significant.
• Estate planning advisors debate how much family members and other heirs should be told about an estate plan ahead of time. It generally is considered a bad idea to pass around the will or give out detailed information. You might decide to change some specifics in the future and would have to explain that to everyone and hand out the new will.Those involved in estate litigation, however, say that surprise and lack of communication probably are big reasons for will contests. When an heir learns for the first time at the will reading that shares will be unequal, the only way to vent the anger and frustration is to challenge the will and be upset at the favored heirs.

If a will’s terms are not going to be what someone expects, then communication should be considered. A brief explanation of the terms and the reasoning should be made. That gives the unfavored heir an opportunity to absorb the change and ask questions. It also gives the unhappy heir time to accept the situation and reconcile with you and the other heirs.

Will contests are part of the litigation explosion. Unlike much other litigation, many will contests can be avoided or defeated with careful estate planning.