One of the primary reasons for executing a Last Will and Testament is to ensure that the assets you leave behind will be distributed according to your wishes. If someone challenges the validity of your Will, however, the ensuing Will contest could result in those wishes not being honored. To help prevent that from happening, a Minot estate planning attorney at German Law Group discusses what you can do to prevent a Will contest after you are gone.
What Happens When Someone Contests a Will?
Shortly after your death, your estate will go through the legal process known as “probate.” Authenticating your Last Will and Testament is one of several important reasons for the probate process. The individual you appointed as your Executor will typically submit an original copy of your Will to the appropriate court to initiate probate. If no one challenges the validity of the Will submitted to the court, the probate process will proceed as planned. If, however, someone does contest the validity of the Will, the probate process must effectively come to a halt while the challenge is litigated. If the contestant is successful, the state intestate succession laws will be used to probate your estate unless there is another valid Will presented to the court. If the contestant is unsuccessful, the probate process resumes, using the terms of your Will to determine how your estate assets are distributed.
Can I Do Anything to Prevent a Will Contest?
There is no way to guarantee a smooth sail through the probate process; however, there are steps you can take that will reduce the likelihood of a Will contest after you are gone, such as:
- Seek professional advice when creating your Will. It can be tempting to go the DIY route when creating your Will given how easy it is to find DIY legal forms on the internet. Those forms, however, greatly increase the odds of a challenge, instead of preventing one, because they are so often riddled with errors and omissions. In addition, by consulting with an estate planning attorney when you create your Will you have yet another disinterested witness who spent considerable time with you around the time you executed your Will. This can be important if someone does contest your Will on the grounds that you lacked “testamentary capacity” at the time you executed the Will.
- Stay away from probate. You can incorporate probate avoidance tools and strategies into your estate plan which, in turn, decrease the likelihood of a Will contest. Assets that are gifted in your Will must go through probate, subjecting them to the possibility of a Will contest. Non-probate assets though bypass probate altogether, meaning they cannot be the subject of a Will contest. Converting assets to non-probate assets when possible, therefore, only makes sense. Common examples of non-probate assets include trust assets, certain types of jointly held property, and funds held in a “payable on death (POD)” account.
- Get a complete physical just before you execute your Will. Schedule a complete physical just prior to executing your Will to provide evidence of your state of mind, should it be needed down the road. Claiming that the Testator lacked “testamentary capacity” is a common basis for a Will contest. Having a complete physical done right before signing your Will creates an excellent record of your physical and mental capacity.
- Provide witnesses. Execute your Will in front of two disinterested witnesses. Most attorneys have staff members witness Wills because they can usually be located later if needed to testify to the Testator’s state of mind and stated wishes at the time of execution.
- Create a Letter of Instruction. This is simply a letter that is written by you explaining anything not already covered elsewhere in your estate plan. You can use this option to explain why you made certain decisions that might be controversial or that are likely to cause a challenge.
- Include a “no contest” clause in your Will. A “no contest” clause is a provision in a Will that effectively disinherits anyone who tries to contest the Will. State laws vary with regard to how they approach no contest clauses. North Dakota does enforce no contest clauses; however, like many states, there is good faith exception that effectively means a no contest clause won’t be enforced if there was a good reason to contest the Will.
Contact a Minot Estate Planning Attorney
Please join us for an upcoming FREE seminar. If you have additional questions or concerns about what you can do to prevent a Will contest, contact a Minot estate planning attorney at German Law Group by calling 701-738-0060 to schedule an appointment.