Protect Your Assets by Preventing a Challenge to Your Will or Trust

Although your family members get along rather well with each other, it does not rule out the possibility of a challenge to your estate. Shutterstock

After you have made your will and established a trust for your beneficiaries, you may find that your documents are not as challenge-proof as you thought. Will and trust laws are constantly changing, so it will be a good idea to check with a will and trust lawyer to ensure they can withstand any possible challenges.

Although your family members get along rather well with each other, it does not rule out the possibility of a challenge to your estate. The occurrence will be even more likely if your assets are perceived as not distributed equally among your heirs.

Contesting a Will

Generally, contesting a will is not easy or cheap, but it is possible if there is a good reason. The reason must be more than not liking how the distribution was made. Trust&Will lists some justifications for challenging a will. They include:

• Improper signing of the document—not according to local state laws.
• Not notarized, and the law says it must be.
• More than one document in existence.
• Insufficient number of witnesses.
• The will creator was under duress or mentally incompetent when making or signing it.

Making a Will Less Contestable

It is suggested that a clause be put into the will when you make it to prevent it from being contested. That clause states that anyone contesting the will—and not succeeding—will lose all rights to their inheritance. Even though it reduces the chances of a contest of the will, it still can successfully be done. The only people who can contest the will are those named in it or have a monetary interest in the assets.

There is a statute of limitations in place to challenge a will. It is different in each state. Justia reveals that the time frame for challenging a will can be from three months to two years.

Here are some ways to ensure that your will is not contested.

• Discuss With Your Beneficiaries Who Wants Which Tangible Assets

One of your beneficiaries may be more interested in some of your assets than another. You can discuss these with your beneficiaries to learn who would appreciate them the most and insert that person into your will for that item.

Discuss with your heirs who will receive your various assets, which will help prevent problems in the future. These items can be written in your will and the one they are to go to in your will. Avoid a generic statement such as they are to be distributed equally among your heirs because it may not prevent potential disputes.

• Subtract Gifts From the Future Inheritance

When you give a gift, such as money or property, to a future beneficiary, SafeHarborLawFirm suggests putting its value into your will and subtracting it from the total value the beneficiary will receive. You can stipulate in your will (and to the beneficiary) that it is an advancement. It will help you to distribute each beneficiary in equal portions.

• Insert a No-Contest Clause

A no-contest clause is one of the best ways to help ensure that the will is not contested. Florida or Indiana do not recognize it, ElderLawAnswers says. You can even write it in another state, but if you move to one of those two states, it will not be recognized.

One potential problem with this clause is that if you leave out important things in your will, it cannot be corrected without a beneficiary possibly losing their inheritance. To prevent this from happening, you need to ensure there are no mistakes in your estate planning documents. In some cases, a no-contest clause may only apply to some parts of the will and not to all of it.

• How to Disinherit Heirs

If you intend to leave someone out of your will or trust, mention it clearly in the document. Without it, the disinherited one may assume it was a mistake and could be grounds for contesting the will. HMEstatePLanning says to further make it unlikely that the individual will challenge the will by giving them enough in your will to make them not want to risk losing it if they challenge it.

• Prove Your Mental Capacity

When contesting a will or trust, one of the primary arguments will be to challenge the mental capacity of the will creator at the time, or they may claim undue influence. It can be avoided, DuncanLegal says, by having a medical evaluation that confirms your mental competence. You can include it in the will or present it later in court when challenged.

Witnesses are required in most states to be present when you sign the document. They will testify of your mental competence at the time and that you understand the consequences and nature of the will. Their signing also indicates that you were not under any duress.

Review Your Will Occasionally

Unless you are on your deathbed and expect to die before long, you may need to review it every so often to ensure you have not left someone or something out of your will. You may buy new property such as a car, a boat, a vacation home, an expensive watch, artwork, or other valuable asset, or you may have had a divorce, had a spouse or child die, or there may be new births in the family that you do not want to leave out. There may also be someone you might want to disinherit since you wrote it.

Writing a will is not a one-time deal. You need to review it every so often to keep up with possible changes. Be sure also that you have the right person chosen to be the executor of the estate—one who will follow the directions. The more assets in the will, the more likely a challenge may follow. Ensure that older copies of your will get destroyed to prevent confusion.

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