Wills can be legitimately contested for many reasons. Was the deceased subject to undue influence, say by an unrelated nurse, girlfriend, or companion who ended up in the will? Is a child of the deceased disinherited without apparent cause? Perhaps the deceased was suffering from some form of dementia at the time the will was made. Does the will violate the terms of a divorce judgment or prenuptial agreement? These can be questions of fact that require a formal trial and presentation of evidence for the judge to determine the validity of the will. And again, it is easy to do, since the court case has been filed and already exists. Plus, the fees of both sides are often paid out of the estate, so the person contesting has nothing to lose.
Suppose you have a child from hell and there is no way you want the kid to inherit anything from you. If you make out a will and just leave their name off, he or she will be able to inherit anyway. The assumption is that you would not have omitted the object of your affection, so it must have been a mistake. An oversight. The child would be what the law calls a pretermitted heir. Even if you specifically state that it is your intention to leave nothing to Johnny under any circumstance, he can still contest it using various theories, such as that you were mentally incompetent or under duress when you excluded him. We do not want a will probated that could be contested by Johnny. Using a trust or another method avoids most court problems.
Probate-avoiding methods such as trusts can be contested in court, of course, but it is much more difficult. First, the person contesting has to find a lawyer and pay a hefty retainer fee. They don’t take these kinds of cases on a contingency basis. They must pay court filing and service of process fees. You have to pay for the court challenge whether you win or lose. It is an hourly rate that adds up fast. There are no fill-in-the-blank forms for this type of lawsuit, so the paperwork has to be especially written, which takes more time.
Most trusts contain a disinheritance clause, which says that if anyone contests the trust, they are either disinherited or their share is limited to one dollar. While this provision is not necessarily always enforceable, it discourages people from litigation. Arbitration clauses are also usually added to trusts, which also limit the options for a contestant.
Probate and its attendant costs and time delays is a certainty for those with assets that remain in their own name at the time of their death. Making a will doesn’t change the length of time probate takes or its costs. In both cases, will or no will, probate will be necessary to transfer the assets remaining to the rightful heirs. And the probate process is neither simpler nor shorter just because you have a will. The common misconception is that a will solves all the problems, but that is just not true. There are non-probate alternatives that we will explore in this book that eliminate most of the expense and time of the probate process.
