How to Avoid a Will Contest
Estate planning is supposed to provide peace of mind. With a detailed estate plan, our clients know exactly who will receive what when they die.
However, will contests are always a possibility. Disappointed heirs could allege that you lacked capacity or were coerced into signing your will. They might bring a lawsuit to have the will set aside or, barring that, intimidating other heirs to giving them money to dismiss the lawsuit.
There is no 100%, surefire way to avoid a will contest. But as experienced estate planning lawyers in The Villages, we recommend the following tips to minimize the chances of one occurring. Contact us for more information if you are drafting an estate plan.
Hire an Experienced Estate Planning Attorney in The Villages
Our firm knows how to draft wills so that there is no appearance of undue influence. We will fully document that you have the capacity to make your estate plan, which will insulate it from a legal challenge by a disappointed heir.
If you choose to use a “do-it-yourself” estate planning kit that you find online, then you lose these protections. For example, we can select appropriate people to witness you sign your will who can testify that you were of sound mind. We might also choose to record the signing and to interview you to show that you have capacity. This type of evidence is highly effective at fighting off will contests.
Use Other Legal Vehicles
Many clients use revocable trusts as part of their estate plan. They sign assets over to the trust and create instructions for who will receive the property at death. Admittedly, an heir can also challenge a trust, but it is harder for them to know what is in it. They also need to choose the correct forum to file.
We can also use payable on death accounts and other vehicles to transfer assets when you die. For example, you might create joint ownership with the right of survivorship for a bank account. Since these assets pass outside probate, heirs might not even know they exist.
Avoid Relying on “No Contest” Clauses
This type of clause states that an heir will forfeit any right to inherit if they challenge a will. However, Florida’s legislature has made them illegal. Fla. Stat. §732.517 states that they are unenforceable when included in a will, and §736.1108 makes them unenforceable in a trust.
This is one reason why it is critical to work with a Florida attorney when creating an estate plan. DIY kits often include these clauses because they are legal in most states, but they provide a false sense of security to Floridians.
Explain Your Reasoning
You might take some of the “sting” out of being left few assets by explaining your decision-making process. You can do this in your will itself or in a letter that you send to your children and other heirs. For example, you might have a special-needs child who you think needs more assets after you are gone. You can explain this in a letter. True, some heirs might still be angry, but they might think twice before launching an expensive and time-consuming will contest.
Give Us a Call
Millhorn Elder Law Planning Group has helped hundreds of people create estate plans. We can also revise any plan to reflect your current needs. For assistance, please call us to schedule a free consultation at 800-743-9732.